Playing the Game

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Dr. Malcolm Cross

President Biden has pledged to appoint a Black woman to the Supreme Court.  Neither race nor sex has any relationship to character or ability.  But the race and sex of the appointee, whoever she may be, have everything to do with the political advantage Biden for himself and the Democratic Party.

What do badminton courts, volleyball courts, tennis courts, basketball courts, and the federal courts all have in common?  They’re all courts on which games are played.

Presidents, both Democratic and Republican, play the judicial nomination game when they try to use their nominations of judges and Supreme Court justices to win political benefits for themselves and their respective parties.  Senators of both parties play the game when they seek to support or reject presidents’ judicial nominees.

The latest example of judicial gamesmanship is President Biden’s pledge to appoint a Black woman to the Supreme Court.  This move is not especially popular with the general public.  According to a recent poll, about 70% of those queried said merit should be Biden’s main criterion for selection.  But this misses the point.  No doubt Biden wants to appoint someone of ability and integrity to the Supreme Court.  But he believes—quite rationally—that he owes his presidential nomination to Black voters, especially in South Carolina, who overwhelmingly supported him in its Democratic primary, enabling him to finally score a major win after losing a string of primaries and caucuses.  No doubt his win jumpstarted his failing campaign and set him on the road to winning the nomination and election.  Without Black support, Joe would probably have failed in his 2020 presidential bid.  He knows his debt to Black voters; hence his selection of Kamala Harris for Vice President and his determination to put a Black woman on the Supreme Court in fulfillment of a major campaign promise.

And Biden is by no means alone in playing this game.  In 1980, Ronald Reagan was losing female support for his presidential bid because he had allied the Republican Party with the Christian Right and made the GOP explicitly anti-abortion and opposed to the adoption of the Equal Rights Amendment.  To cut his losses with women, he pledged to appoint the first woman to the Supreme Court.  He kept his promise with the appointment of Sandra Day O’Connor.

Another example:  Richard Nixon, running for president in 1968 and attempting to win more White Southern voters, pledged, if elected, to appoint at least one White conservative jurist from the South to the Supreme Court.  Despite his best efforts, he failed in the short run.  Elected with invaluable Southern support, he nominated two successive Supreme Court nominees to fill a vacancy created when a liberal justice resigned following the discovery, by Nixon’s Justice Department, that the justice had engaged in financial dealings which, while not illegal, looked unsavory (the justice had arranged to receive generous pensions for himself and his wife from a financier who had also paid the justice a stipend for moonlighting as a law school professor).  The Senate, which had a Democratic majority, rejected Nixon’s first nominee, a distinguished jurist, probably out of revenge for how the vacancy in question was created.  It rejected his second nominee on the basis of evidence he was intellectually mediocre with a history of making racist statements.  But at least Nixon tried, and evidently secured an A for effort to cancel out his F for achievement.  In 1972 he won all eleven states of the old Confederacy, the first Republican President to do so.  Advantage:  Nixon.

The Senate, too, likes to play the game, with the power to confirm or reject presidents’ judicial nominations.  The Court of Appeals for the District of Columbia Circuit is widely considered to be the second most important federal court.  More Supreme Court justices are appointed from it than from any other court, and appointment to the Circuit Court is normally seen as a prelude for consideration for a Supreme Court nomination.  Senate Democrats blocked President George W. Bush’s nomination to the Circuit Court of Miguel Estrada, who would have been the first Hispanic judge on the circuit and who was considered a likely Supreme Court nominee.  Instead, his was the first appellate court nomination to be filibustered to death, evidently by those who did not want Bush to get the credit for Hispanic appointments.

Senate Democrats also tried, unsuccessfully, to oppose Bush’s appointment of California Supreme Court Justice Janice Rogers Brown to the D. C. Circuit Court.  But when he put her on his short list for a Supreme Court nomination, a prominent Democratic senator said her nomination to the Supreme Court would be blocked.  Hence Bush decided to avoid that fight.  So if Joe Biden gets the credit he wants for appointing the first Black female Supreme Court nominee, he’ll also have credit for blocking the first serious effort to put a Black female on the court as well, thereby depriving Bush of a first he craved as much as Biden does.  Advantage:  Biden.

In making decisions on judicial nominations, presidents and senators are motivated by more than concerns over who gets how much credit for making or blocking nominations favored by various voting blocks.  Each president, whether Democratic or Republican, will try to appoint as many members of his own party to the federal courts at least partly to advance his respective party’s policy goals.  But taking race, sex, ethnicity, region of origin, and religion to score more votes is also part of the game.  Republicans complaining of Biden’s “affirmative action appointee” are too disingenuous in this case.  Until America evolves to the point where we evaluate judicial appointments purely by the character of the appointee, and with no regard for the appointee’s race, sex, or any other factor unrelated to merit, the great game will continue, no matter the party of the president or the senators involved.  So play on.


Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present).  He was Mayor Pro Tem of Stephenville from 2008 to 2014.  He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club, and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.

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