The Supreme Court Fight We Should Be Having

There are more productive things to argue about than identify politics.

President Joe Biden's vow to nominate a black woman to replace retiring Justice Stephen Breyer on the U.S. Supreme Court has sparked a predictable partisan fight about identity politics. But there is a more productive Supreme Court fight that we should be having.

To be sure, the background of a judicial nominee does matter. Take Clarence Thomas. When the Supreme Court heard oral arguments in 2003 about a state law that criminalized the burning of a cross "with the intent of intimidating any person or group of persons," Thomas spoke from personal experience about the horrors of growing up in Jim Crow America. The law at issue in Virginia v. Black was intended to counteract "almost 100 years of lynching and activity in the South" by the Ku Klux Klan and other racist groups, Thomas told the hushed courtroom. "This was a reign of terror, and the cross was a symbol of that reign of terror." Race comes up again and again in Thomas' writings, speeches, and opinions. As I noted a few years ago, "many of his critics may be too ignorant to know it, but Thomas' writings are steeped in African-American history and grapple repeatedly with the long shadow cast by slavery and Jim Crow."

Speaking of those critics, Biden, who was chair of the Senate Judiciary Committee when Thomas' SCOTUS nomination came around, was not exactly gung-ho about that particular black nominee making history. In fact, Biden did what he could to prevent Thomas from becoming the Court's second black justice, including ripping Thomas' words out of context in an effort to paint the conservative jurist as a crazy libertarian.

So, as Biden himself clearly knows, race is not the only factor when it comes to Supreme Court confirmations.

Which brings us to the Supreme Court fight that we should be having. With limited exceptions, a SCOTUS nominee from a Democratic (or Republican) president can be expected to vote in predictable ways in certain types of cases, such as those dealing with hot-button favorites like abortion and guns. That's just reality.

But there is one large and very important category of cases in which a judge's partisan affiliation does not tell the whole story. That category is criminal justice. For example, on the U.S. Court of Appeals for the 5th Circuit, judges appointed by President Donald Trump have clashed repeatedly with each other in recent years over qualified immunity for cops. Likewise, Republican-appointed federal judges on multiple appellate courts (and SCOTUS) have butted heads repeatedly in recent years over the Fourth Amendment. Criminal justice cases have divided the "conservative" judiciary.

The same thing is happening on the other side of the judicial aisle. Take the man of the hour, Breyer. A Democratic appointee, Breyer was sometimes less "liberal" on criminal justice than the late Justice Antonin Scalia, a Republican judicial pick. Why? Because Breyer's penchant for judicial deference sometimes led him to give law enforcement the benefit of the doubt in major Fourth Amendment cases. By contrast, Justice Sonia Sotomayor, a Democratic appointee like Breyer, sided with Scalia over Breyer in those same cases and has since established herself as perhaps the biggest Fourth Amendment hawk on the current Court.

So let's fight about judicial philosophy and criminal justice and exactly what sort of judge Biden is going to pick. Will she follow in Breyer's Fourth Amendment footsteps? Will she follow in Sotomayor's? Where does she stand on qualified immunity? Will she be the rare justice with a background as a public defender? These things are worth fighting about.