Pending Musing on a Pending Nomination

As many know, President Biden has promised to nominate a black woman to the US Supreme Court.  He made that promise to obtain the support of a prominent Democrat.

If you look at the data, women make up about 37.5% of federal judges.  Judges who happen to be black are roughly 5.4% of all judges.  That means that President Biden is limiting his range of choices to roughly 2% of the total pool of federal judges.  How likely is it that his nominee will be among the best of the very best experienced, legal minds in the country if he limits his pool of nominees based on race and gender?

I suppose he might select someone outside of the judiciary to be on the Supreme Court.  That happens infrequently.  I also supposed that it might be a bit much to hope that he would nominate Condoleezza Rice if he looked outside of the pool of current federal judges.  No need to hold my breath on that one.

I noticed something a bit odd in the demographic data for federal judges.  The proportion of judges who are either black, Asian, or Hispanic actually increased during former President Trump's term in office.  According to some, Mr. Trump is the biggest racist to reach the Presidency for a very long time.  But his administration's nomination of judges led to greater racial diversity.  The percentage of women on the bench also went up.  

The racist and misogynist President improved diversity on the federal bench.  Perhaps the mainstream media narrative isn't quite as valid as some might otherwise suggest.

From a few early reports, it looks like U.S. Appeals Court Judge Ketanji Brown Jackson is in the lead for the nomination.  I had never heard of her before.  From this profile, she seems to have the basic temperament and intellect for the job.  Former US House Speaker Paul Ryan thinks well of her ability as a judge.  Judge Brown Jackson's husband is the twin to Paul Ryan's brother-in-law.

The judge clerked for retiring Justice Stephen Breyer.  I'd be happier if she had clerked for former Justice Scalia, but we can't have everything.  Her educational background (Harvard) would be part of a disappointing trend.  Her professional background as a defense attorney would represent a historically unique and welcome (in my opinion) addition to the bench.

Hopefully, if she is nominated, her confirmation hearings go smoothly and no odd-ball legal theories will be revealed.  It would be nice to see a competent judge make it to the Supreme Court with a minimum amount of fuss.

Justice Sotomayor is a rank disappointment.

Update - with these things, there will always be something more.

It turns out that Joe Biden used the Senate's filibuster rules to block the first black woman to be nominated to the US Supreme Court.  Her name is Janice Rogers Brown.  She was nominated by then President George W. Bush.  Biden was part of a group of Democrats that filibustered her nomination to a US circuit court position.  Columnist Robert Novak said the event was “the first full-scale effort in American history to prevent a president from picking the federal judges he wants.”

That effort was successful, but Judge Rogers Brown was re-nominated and confirmed a couple years later in 2005.  She was considered for a US Supreme Court appointment a couple years later.  Biden again offered to filibuster her nomination.  She would have been the first Supreme Court nominee to the filibustered in the history of the nation.

It seems to me that the Democrats allege that the filibuster is racist precisely because of their past experiences in using the filibuster for racist purposes.  They can't imagine it being used for anything more principled.  They are projecting.  They almost always are.

8/6/2025 - pronoun trouble! corrected

Justices Denied

Jacob Sullen over at Reason points out the hypocrisy involved by members of the Supreme Court that oppose granting the Second Amendment equal footing with the rest of the Bill of Rights.

If "the people" want to ban handguns, they say, "the people" should be allowed to implement that desire through their elected representatives.

What if the people want to ban books that offend them, establish an official church, or authorize police to conduct warrantless searches at will? Those options are also foreclosed by constitutional provisions that apply to the states by way of the 14th Amendment. The crucial difference between a pure democracy and a constitutional democracy like ours is that sometimes the majority does not decide.
Likewise, Stevens defends "state and local legislatures' right to experiment," while Breyer is loath to interfere with "the ability of States to reflect local preferences and conditions—both key virtues of federalism." Coming from justices who think Congress can disregard state decisions about the medical use of marijuana because a plant on the windowsill of a cancer patient qualifies as interstate commerce, this sudden concern about federalism is hard to take seriously.

Another reason to doubt the dissenters' sincerity: They would never accept federalism as a rationale for letting states "experiment" with freedom of speech, freedom of religion, or due process protections. Much of their job, as they themselves see it, involves overriding "local preferences" that give short shrift to constitutional rights.

Second Amendment rights are different, Breyer says, because "determining the constitutionality of a particular state gun law requires finding answers to complex empirically based questions." So does weighing the claims in favor of banning child pornography or depictions of animal cruelty, relaxing the Miranda rule, admitting illegally obtained evidence, or allowing warrantless pat-downs, dog sniffs, or infrared surveillance.

When they decide whether a law or practice violates a constitutional right, courts cannot avoid empirical questions. In cases involving racial discrimination or content-based speech restrictions, for example, they ask whether the challenged law is "narrowly tailored to serve a compelling state interest" and is the "least restrictive means" of doing so.

h/t to the blogfather