How the debate over Biden’s Supreme Court nominee got so toxic.


There are so many exciting firsts to be found on the shortlist of potential black women selected for the Supreme Court vacancy. We have non-Harvard-Yale applicants near the lock on SCOTUS. We have what appears to be the most overt political patronage appointment we have seen in decades. We have judges from state supreme courts, federal appeals courts, and federal district courts, who by necessity write differently for different audiences. Yet most of the narratives we have settled on continue to essentialize race and gender almost to the exclusion of everything else.

Republican Senator Roger Wicker wants to yell about “Affirmative Action”. And Republican Senator Ted Cruz wants to shout “offense”. It’s a shame. There’s a lot to learn from so many new additions to this list of potential candidates. By lumping the entire class of women into a category that has somehow been deemed “inferior” by so many critics, we have both essentialized and lost all truly remarkable differences. We also supposedly pitted them against each other in ways that flattened out their unique gifts and backgrounds.

Start with the weird intelligence fight. It is a universally recognized truth that a white man in possession of a judgeship must be blindly intelligent. We’ve gone back and looked at coverage of shortlisted candidates for Supreme Court seats vacated by, say, Justice Antonin Scalia in 2016 and Anthony Kennedy in 2018: Thomas Hardiman? Clever. Steven Colloton? Clever. Neil Gorsuch? Smart smart smart. Raymond Kethledge. Clever. Don Willette. Crazy smart. Curiously, in the summaries of their immense qualifications and writings, there is no hint of doubt that each was immensely qualified and brilliant. You could praise Kethledge without anyone reading it to mean that Colloton was a model. They were not pitted against each other as if white male intelligence was in short supply and if one had it the others somehow lacked it.

Let us now turn to the as-yet-unknown candidate to fill the seat vacated less than a week ago by Justice Stephen Breyer. As we noted last week, thanks in part to President Joe Biden’s promise to nominate a black woman, the drumbeat of “not smart” kicked in hours after the shortlists aired. Conservative commentators were happy to literally relegate everyone on the notional shortlist to the status of “lesser black women” who raise pressing “quality issues” before they were even officially announced. But it wasn’t just the Conservatives who were taking the bait. An unsourced claim in SCOTUSblog speculated that one potential contestant, Leondra Kruger, is “in the opinion of some, even more dynamic and intellectually stronger” than another potential contestant, Ketanji Brown Jackson. This summary quickly turned into conjecture about how “some observers” think Kruger is intellectually superior – a whole new debate completely removed from the substance of either woman’s work. Legal writing expert Ross Guberman, in a now-removed article, analyzed samples of Jackson and Kruger’s writing in a program that uses AI to score court opinions out of 100 on factors, such as whether the writing is “crisp and punchy”. Conservatives like Ed Whelan then seized upon parts of Guberman’s analysis to select language suggesting that Jackson is a terrible, tedious writer, relying on an agenda he himself conceded that no one should “treat as gospel”.

We miss the chance to learn more about real women and real work in a quest to score cheap political points points.

Never mind that Jackson wrote these opinions on the federal district court while Kruger wrote for a state Supreme Court – two very different courts with different purposes that often require different writing styles. The blow to Jackson is that she explains too much, going out of her way to help lawyers (and the public) understand complicated things like subject matter jurisdiction. In his eight years on district court, Jackson also had to deal with extremely complex issues of statutory interpretation for the first time, while appellate judges have the luxury of simply reviewing the lower court’s work. .

Compare their approach to that of conservative Supreme Court justices who routinely throw a single paragraph of sparse reasoning at the shadow case and call it a day. Meanwhile, a contestant like Jackson who bends over backwards to show off her work is being criticized for explaining too much. As Kimberly Atkins Stohr noted in the Boston Globe, black women cannot simply be “qualified” to excel in law; they must be “super qualified” throughout their career*. And yet, even those who are twice as qualified as their peers end up drawing twice as much criticism. Can’t find anything substantial in their record to criticize, as there is no scandal, partisanship or overt lobbying? Do not worry; you can always ask an AI algorithm to help you sort the deserving from the deserving.

On the Amicus podcast this week, former U.S. District Court Judge Nancy Gertner pointed to one reason why none of Biden’s shortlists have particularly flashy opinions to their name. Gertner described how young liberal lawyers “audition” for appointments to higher courts: They try to diligently apply the law to the facts and be as careful as possible. Judges swinging for fences on the left are rarely high. In contrast, conservative judges who audition for SCOTUS go out of their way to prove their bona fides within the Federalist Society: Gorsuch used his judicial opinions in the appeals court to portray himself as an enemy of the administrative state and a staunch supporter of religious freedom; Kavanaugh has displayed his support for the Unitarian Executive and his hostility to reproductive rights to earn a spot on President Donald Trump’s shortlist; Amy Coney Barrett has been showing off her Second Amendment maximalism.

The conservative legal movement rewards such blatant ideological hearings. Republicans are demanding proof that their judges will aggressively overturn precedents and laws that conflict with their policy goals. (Hence Trump justices in the lower courts who are tripping over each other to deploy the most outrageous, vitriolic and crass rhetoric to ever appear in judicial writing.) Meanwhile, Democrats are looking for middle justices with non-controversial records. It’s hard for left-leaning judges to write with so much punch when they’re eager to stay in their lane. This asymmetry is also reproduced in the academy of law.

Left-wing court observers sometimes delight in devouring their own, as if criticizing liberal judges demonstrated their rigor and intellectual consistency. Surely we are exceptionally smart when we can make quick judgments about everyone’s intelligence. This trend explains at least in part the impoverished debates we have about writing style, intelligence, and other qualifications that don’t show up when conservative white men fill all the spots on the list.

There is a generation of extraordinary women of color who are finally being promoted off the bench. It’s unfortunate that we miss the opportunity to learn more about real women and real work in a quest to score cheap political points.

Correction, February 4, 2022: This article incorrectly stated that a shortlist of candidates was intended to replace Justice Anthony Kennedy. Some were to replace Kennedy, and some were to replace Justice Antonin Scalia. The article also originally misspelled Kimberly Atkins Stohr’s first name.


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