Imagine your five-year-old daughter was being wheeled into surgery to have a defective heart valve replaced. What would be the most important qualification for the surgeon about to cut her open? Would it be the doctor’s race or gender? When the hospital’s chief administrator decided that it was more important that the members of surgical staff “looked like the community” than their level of competence, he put your daughter’s life at risk. As a parent, if I suspected that this was the case, I would choose a different hospital. The U.S. Supreme Court is the last word on what constitutes law in our country. The exercise of this sweeping power has and will continue to have life-altering consequences on the millions of people who live in America. What then, should be the most important qualification for the selection of a Supreme Court Justice? Heather MacDonald’s compelling piece in the City Journal exposes the absurdity of elevating race, gender or any other criteria beyond competence, integrity and temperament governing the selection for membership on the nation’s highest court. By limiting the selection of the next justice to a black woman, MacDonald notes that President Biden is “rendering 98 percent of all possible candidates beyond consideration because they lack `qualifications’ that have nothing to do with judging.”
“The quality of our jurisprudence matters. The race, sex, and `gender identity’ of judges do not. Private parties rely on an opinion’s clarity of reasoning to predict the outcomes of legal disputes. Some of the nation’s most complex moral and political questions have been addressed through the medium of legal decisions, especially from the Supreme Court. The quality of those decisions can strengthen or undermine the legitimacy of the law and of our constitutional order. Commercial matters can be nearly as complex, requiring the reconciling of competing statutes and regulations.
The law is not just about outcomes, contrary to contemporary discourse, which focuses exclusively on whether this or that justice will tip the balance on this or that policy. Under that contemporary perspective, the fact that Biden’s first Supreme Court pick will likely not change the overall ideological tenor of the court in the short term is viewed as more noteworthy than the fact that the new justice will help shape our jurisprudence for decades to come. Half of Biden’s picks for seats on the influential federal appeals courts—eight of 16 new appellate judges—have already been black females, presumably by virtue of the same irrelevant search restrictions. By making race and sex the paramount considerations for his Supreme Court nomination, Biden will likely deal another blow to the quality of our most important institutions—and with it our capacity to achieve excellence as a country and a civilization.”