Former Supreme Courtroom Justice Sandra Day O’Connor testifies earlier than the Senate Judiciary Committee listening to on “Making certain Judicial Independence By means of Civics Schooling” on July 25, 2012 in Washington, D.C. (Karen Bleier/AFP/Getty Pictures/TNS)
Within the wake of Justice Stephen Breyer’s rumored retirement, an odd controversy has swirled round President Joe Biden’s marketing campaign pledge to nominate a Black lady to the primary emptiness. Critics have in contrast the promise to school admission quotas; supporters have identified that President Ronald Reagan fulfilled his personal marketing campaign vow to nominate the primary feminine justice when he nominated Sandra Day O’Connor.
The supporters have the higher case. From the earliest days of the republic, presidents have all the time sought to craft a Supreme Courtroom that appears like America. All that’s modified is what they suppose America appears to be like like.
Presidents have lengthy sought variety on the bench. It simply was once geographic variety. In a guide revealed in 1928, Chief Justice Charles Evans Hughes made the case for taking into express account the nominee’s state of origin: “The arrogance of the nation must be maintained by alternatives which as far as practicable will symbolize all elements of the US.”
Hughes knew what he was speaking about. At the moment, the necessity for geographic illustration was central to public debate over the right composition of the Supreme Courtroom.
In 1923, for instance, President Warren Harding’s nomination of Edward Sanford was sharply criticized as a result of it could give the Supreme Courtroom a second Tennessean. And the issue wasn’t simply two justices from the identical state. Shortly earlier than Sanford’s nomination was formally introduced, the press reported a unique geographic objection: “New York republicans protested on the bottom that their state, having the most important inhabitants of any within the union, was with out illustration on the nation’s highest tribunal.”
However in fact. President Theodore Roosevelt’s 1902 number of Oliver Wendell Holmes was motivated largely by the necessity to hold electoral-vote-rich Massachusetts completely satisfied. Ditto with President Herbert Hoover’s 1930 nomination of Owen Roberts of Pennsylvania.
Then there’s the case of Justice Benjamin Cardozo. In 1932, underneath huge stress to place Cardozo on the court docket, Hoover advised a visiting senator that he couldn’t nominate the distinguished New York jurist … “on account of geography.” Hoover favored William Mitchell, his legal professional basic, who hailed from Minnesota. The president modified his thoughts — however solely after receiving assurances from Western senators that regional jealousies wouldn't make them oppose the nominee.
Then there’s President Franklin Roosevelt’s appointment of Hugo Black in 1937. What we have a tendency to recollect these days is Black’s earlier membership within the Ku Klux Klan. What we too typically neglect is that FDR deliberate all alongside to nominate a Southerner, his manner of placating highly effective congressional Democrats from the area who had fought so onerous for his doomed court-packing plan. The president was anticipated to appoint Joseph T. Robinson, the Senate’s majority chief. Senate Democrats, who within the phrases of 1 historian had by that point “all however usurped the facility of appointment,” have been swift to undertake a decision endorsing Robinson’s candidacy. Black’s path to the excessive court docket was cleared solely by the bulk chief’s sudden and surprising demise earlier than his title might be positioned in nomination. With Robinson gone, FDR nonetheless wanted a Southerner.
Within the Nineteen Fifties, Sen. William Langer of North Dakota, a member of the Judiciary Committee, waged what authorized scholar Henry Abraham known as a “perverse” six-year marketing campaign of “opposing any and all nominees to the Courtroom till somebody from his residence state (which had by no means been so honored) acquired an appointment.” (In 1950, Langer had given a speech on the Senate ground lamenting that no main government department appointment had ever gone to a North Dakotan.) But few on the time few appeared to seek out it peculiar.
Small marvel, then, that when Lyndon Johnson selected Thurgoood Marshall in 1967, some critics argued with straight faces that though that they had no objection to the nominee’s race, the president trod harmful waters by deciding on a New Yorker to switch a Texan.
All of which brings us again to Justice O’Connor. As Biden supporters have been noting, President Reagan appointed her in 1981 to meet a marketing campaign pledge to nominate the primary feminine justice. Honest sufficient. However right here’s the attention-grabbing half. After her first go to with Reagan, O’Connor expressed doubts that she can be chosen. Why? As a result of the Supreme Courtroom already included a justice — William Rehnquist — who hailed from O’Connor’s residence state of Arizona. So as to add one other, she stated, can be “politically inopportune.”
However Reagan correctly nominated her anyway, recognizing that there are a number of other ways to appear like America.
Stephen L. Carter is a Bloomberg Opinion columnist. He's a professor of regulation at Yale College and was a clerk to U.S. Supreme Courtroom Justice Thurgood Marshall.©2022 Bloomberg. Distributed by Tribune Content material Company.