Biden Didn’t Invent Affirmative Action for the Supreme Court

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Biden Didn’t Invent Affirmative Action for the Supreme Court
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Conservatives are attacking President Biden for promising to appoint a Black woman to the Supreme Court. jonathanchait writes on the history of identity representation on the Court

President Biden has not named his choice to fill Stephen Breyer’s vacancy on the Supreme Court, but the first major talking point against her has already emerged: She is the unqualified product of affirmative action.

The Wall Street Journal editorial page clucks, “Mr. Biden’s campaign promise that he’d appoint a black woman to the Supreme Court is unfortunate because it elevates skin color over qualifications.” Cato’s Ilya Shapiro complained, before deleting the tweet, “Because Biden said he’s only consider black women for SCOTUS, his nominee will always have an asterisk attached.” Even grosser versions of the same basic idea are already emanating from the likes of Tucker Carlson.

But when exactly did this era exist? Was it before 1967, when the most qualified judges were all white men? No, there was widely held to be a “Jewish seat” and a “Catholic seat” on the Court for decades during that time. Meanwhile, age has been openly discussed as a crucial factor in selecting justices. Unlike race and gender, which are unrelated to quality, age is a trait that runs directly in opposition to it. Neither party would choose a nominee over the age of 60, even though the most accomplished judges by definition have been honing their craft for a long time.

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