Appointing Justices Based on Race, Sex, or Religion

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A colleague asked: Is it constitutional for President Biden to nominate a Supreme Court Justice because of her race and sex? Even if we were to extend to appointments the Court’s view that sometimes race can be considered as a factor for the sake of “diversity” in higher education, the Court has generally insisted that categorical quotas or other rules that “mak[e] ‘the factor of race … decisive'” are forbidden. The President has said that he would nominate a black woman, not just that he’d consider a candidate’s race or sex as part of the analysis.

My sense is that there is no constitutional problem here, nor, even going beyond the constitutional question, any injustice. And I say this as someone who generally opposes race- and sex-based preferences in government employment, education, contracting, and the like. (Indeed, in 1996, I helped draft Prop. 209 in California, which forbade such preferences, and spoke often in favor of it; last year, I likewise opposed Prop. 16, which tried to repeal Prop. 209.)

Perhaps I’m mistaken on one of these positions, or maybe even on both, but I think high-level government appointments are a very different matter from ordinary hiring or education. Americans are entitled to be treated without regard to race, sex, or religion in the latter, but no-one has a right to any sort of equal treatment in being appointed to high government office.

Such appointments are a political matter, and political factors—including ones related to the identity of the candidate—may rightly play a role in that. In this respect, I think these factors are similar to (though of course not identical to) political affiliation: Government officials generally can’t hire or fire employees or select students or contractors based on political affiliation, see, e.g., Elrod v. Burns (1976); Rutan v. Republican Party (1990); O’Hare Truck Service v. City of Northlake (1996), but of course that rule doesn’t apply to selection of cabinet members (or similar state or local officials), judges, and the like. (Some people have argued that the Religious Test Clause specifically forbids the consideration of religion even in high-level appointments, but I’m skeptical about that, and in any event that provision refers solely to religion.)

The Court has never squarely confronted this as to race discrimination, either at the federal or state level, but it has hinted that such political decisions are different. Consider Mayor of Philadelphia v. Educational Equality League (1974), which involved a challenge to the Mayor’s appointments to a school board nominating panel. The Court ultimately didn’t reach the Mayor’s argument “that judicial review of the discretionary appointments of an executive officer contravenes basic separation-of-powers principles,” because it concluded that there wasn’t enough evidence of racial discrimination on the Mayor’s part. But the Court suggested that “judicial oversight of discretionary appointments may interfere with the ability of an elected official to respond to the mandate of his constituency,” and noted (quoting Carter v. Jury Comm’n of Greene County (1970)) “the problems that would be involved in a federal court’s ordering the Governor of a State to exercise his discretion in a particular way.”

To be sure, that leaves open the possibility that the Equal Protection Clause (or, since that doesn’t apply to the federal government, broader principles of equality, see Bolling v. Sharpe (1954)) forbids discrimination in such appointments, even if federal courts can’t step in to do anything about it. But I think there’s a deeper principle here, beyond just the limits on judicial power: The case for an individual right to equal treatment for high-level appointed officials is especially weak, and the case for leaving elected officials free to make such high-level appointments as a matter of hard-headed political judgment (in the best case, statesmanlike judgment) is especially strong.

American practice reflects that, including American practice from recent decades. President Reagan of course famously nominated Justice O’Connor because of her sex. It seems clear that Justice Thomas was nominated to replace Justice Marshall because of his race, and Justice Barrett was nominated to replace Justice Ginsburg because of her sex. Some have said that Justice Scalia was appointed partly because he was Italian-American, though that’s less clear, and was certainly less part of the public political calculus. (See pp. 57 & 59 of this interview with Peter Wallison.) As I recall, it wasn’t clear at the time of Justice Sotomayor’s nomination that President Obama would nominate a Hispanic, though as I recall the talk was definitely of nominating a woman, and it seems likely that Justice Sotomayor’s ethnicity played a role in the ultimate decision.

All this was doubtless done in part because such identity-based or identity-influenced appointments were seen as politically beneficial for the appointing President (that’s what politicians do), but the appointments were also endorsed by many on the theory that they were good for the country. There can be a debate about whether such attention to identity in high-level appointments is indeed ultimately good for the country on balance (once one sets aside any individual right to equal treatment, which I think doesn’t apply to such high-level positions). But it seems to me to be at least a plausible argument.

And this is especially so given that the other nonpolitical qualities of the prospective appointees are generally so hard to measure and compare, and their qualities as a Justice are so hard to predict. (For instance, then-Judge Thomas had only a short judicial career at the time, and a serious but not especially noteworthy legal career before that, but has since proven himself an interesting and thoughtful Justice.) To be sure, it’s a mistake to appoint a truly bad candidate just based on identity, but that would rarely be necessary even given some identity-based appointment commitment, since there are lots of candidates from any substantial demographic group who would be above any reasonable threshold.

Such considerations also seem plausible to me not as a matter of “affirmative action,” but rather of realpolitik, which may easily cut against minority groups as well as in favor of them. Doubtless many political officials, for instance, carefully judge when they should deliberately appoint a high-level official who’s a member of a minority group, when they should deliberately appoint someone of a majority group (or of a minority group that is more popular than another minority group among the voters), or when they shouldn’t care about the group membership. It’s unfortunate that they may have to react to voter biases that way, but I don’t think they have a categorical obligation to ignore such biases (again, when it comes to high-level political appointments).

Or to take a slightly different example, involving my own ethnic group, Jews: If for some reason the American-Israeli alliance goes sour, and Israel ends up a major political and military adversary, I wouldn’t expect the President to ignore whether a potential Secretary of Defense is Jewish in making his decision—whether because he thinks there’s a small chance that ethnicity will color even a cabinet member’s loyalty, or because he is worried that enough other people will think so. Conversely, if the President deliberately chooses a Jew in that situation, because he thinks that sends an important message, that too strikes me as acceptable.

Or if a President concludes that appointing a Jewish Secretary of Defense would jeopardize some critical alliance with a bitterly anti-Israel country, rejecting a Jewish candidate for the job strikes me as a sensible position, even if one that reflects unfortunate reality. (So much about reality is indeed unfortunate.) I think the President should keep that decision quiet, partly because I don’t want him publicly admitting that such decisions turn on the preferences of foreign countries, but that’s not a matter of equal protection principles.

The President’s job is to make hardheaded decisions on such matters, with an eye solely towards what he thinks is best for the country (though again understanding that, as a politician, he’ll also consider what’s best for him politically) and not towards fair treatment of particular candidates. And I expect that these factors, cutting both for and against people based on their identities (such as race, sex, religion, sex, or sexual orientation) play a role even more often in ambassadorial appointments, and legitimately so.

Again, our commitment to viewpoint neutrality in selecting public university students, or to nonpartisan merit selection in hiring government employees, doesn’t mean that we expect a President to just select “the best candidate” apart from political affiliation for cabinet secretary, or to ignore ideology (or even political background) in hiring a Justice. Likewise, a commitment to nondiscrimination based on race, sex, or religion in ordinary decisionmaking shouldn’t extend to decisionmaking about Justices or other high-level appointees.

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