It’s rare that I agree with Jonathan Turley about anything, but I accept his broad point that Joe Biden probably shouldn’t have promised as a candidate for the Democratic nomination to exclusively consider a black woman for his first appointment to the Supreme Court. There was no need to make the promise so ironclad, and it would have been better to leave some wiggle room. Turley spells out some of the advantages of being a little more equivocal, as Ronald Reagan was when he basically promised to put a woman on the high court when he was a candidate in 1980. I find his arguments persuasive.
But I also don’t see it as particularly important. Â One advantage is that Biden made a binding commitment and was honest about his intentions. That allowed the voters to make an informed decision, and that’s a plus. It also had the benefit of saving us from the kabuki dance of pretending to be openminded about other candidates. We’ve seen this countless times in sports, where a team will interview black applicants for head coaching or general manager jobs just to check a box, even though they know they’ll be filling the position with someone white. In the NFL, this practice is codified as the Rooney Rule, and while it is well-intentioned it can be painful to watch in practice.
Adopted in 2003, the Rooney Rule is an NFL policy requiring every team with a head coaching vacancy to interview at least one or more diverse candidates. In 2009, the Rooney Rule was expanded to include general manager jobs and equivalent front office positions. The Rooney Rule is named after the late former Pittsburgh Steelers owner and chairman of the league’s diversity committee, Dan Rooney.
As you can imagine, this results in countless interviews for candidates who have absolutely no chance of getting the position, if for no other reason that the decision to hire someone else has already been made. Maybe this is an unseemly price to pay for actually having a bit more diversity at the end of the process, but it’s pretty gruesome in the way it provides false hope and wastes people’s time with token interviews.
When it comes to replacing Stephen Breyer on the Supreme Court, Biden could emulate Reagan who pretended to consider several men for appearance’s sake, but actually had every intention of keeping his campaign promise by appointing Sandra Day O’Connor. But Biden probably will provide a short list of candidates that includes exclusively black women, precisely because he also intends to keep his campaign promise.
It would be better to treat any major job opening in the federal government as at least theoretically open to all, regardless of race or gender, but let’s not pretend that honesty doesn’t have its merits. If you’re going to hire based on race or gender (or both), is it really better to pretend otherwise?
As a political matter, this will become another white grievance talking point for the Republicans, and it could have been done in a way where there was less saliency to their argument. But it’s really a pretty minor issue in the bigger picture. On the merits, I can make a case that it’s better not to pretend.
Who wants to get a fake interview with the president for a position on the Supreme Court just so people like Turley will have less to bitch about?
