Supreme Court Vacancy: Ruth Bader Ginsberg Need Not Apply

That a Black woman will fill Justice Stephen Breyer’s soon-to-be vacated seat on the Supreme Court is not surprising.  Many African-American women have the “extraordinary qualifications” President Joe Biden seeks. But 76 percent of Americans surveyed dislike Biden’s crude vow to nominate “the first Black woman” to the Supreme Court. It violates the rules of a longstanding American game which grudgingly tolerates immutable characteristics such as race, ethnicity, or gender as a criterion in government hiring but not the criterion. With Biden’s crass approach, if Ruth Bader Ginsberg were still alive, his White House want ad would read: “Supreme Court Vacancy: RBG Need Not Apply.”

Long before they linked the words “affirmative” and “action,” Americans celebrated many “firsts” by once-marginalized minorities, while always insisting the appointee was the best applicant too. In this nation of nations, members of every subgroup crave acceptance as “normal” Americans. Most want to succeed individually, on merit. But most minorities want people who look like them to help lead us too.

It’s the custom-fit American dream on your terms: you emphasize your minority status when convenient, while insisting on being viewed as an American always.

To be frank, American Jews have particularly enjoyed this one-way street. After centuries of oppression, we have long delighted in the American dream, the opportunity to succeed on merit, regardless of race, color, creed, or gender. As we build ourselves up, we want be seen as Lone Rangers, or better yet, all-American supermen or superwomen, donning our capes and boots to make history on our own.   Once we are victorious, we are happy to pinch ourselves – and toast America – that a Jew could make it this far.

An American Jewish tale, perhaps apocryphal, captures this paradox, and the excitement in 1906 when President Theodore Roosevelt appointed the first Jew to the cabinet – Oscar Straus, as Secretary of Commerce and Labor. Subsequently, newspaper reports circulated of TR telling an American Jewish banquet he chose the best man for the job. The crowd applauded enthusiastically, their illusions intact and confirmed.

The venerable banker Jacob Schiff spoke after Roosevelt. Aging, and too deaf to hear anyone else’s remarks, Schiff admitted that when Roosevelt said it was time to have a Jew in the cabinet, Oscar Straus was the right Jew for the job. Everyone cringed.

Today, Republicans and Democrats take religion, ethnicity, race, and gender into account when hiring. Although Republicans are often more circumspect, to the benefit of the job and the appointee, the off-stage identity politics can be equally intense.

Half-a-century ago, the fight over appointing any woman, black or white, to the Supreme Court, strained President Richard Nixon’s nuclear family – as well as his official family. In a rare intervention into politics, the First Lady Pat Nixon lobbied her husband, demanding a woman nominee – and the President agreed. In October, 1971, Nixon’s people found a right-leaning Democrat, the California Court of Appeals judge, Mildred Lillie. Always delighted to outfox liberals, Nixon rejoiced: “A conservative woman from California! God. That will kill them.”

Nixon’s aides informally submitted Lillie’s name – and that of a second candidate Herschel Friday – to the American Bar Association. They asked its Standing Committee on the Federal Judiciary committee to vet the two before any public announcement. The ABA deemed both “not qualified.” A young Harvard professor, Laurence Tribe, dismissed Lillie as “right-wing and stupid.”

When Nixon nominated William Rehnquist and Lewis Powell, he failed to inform his wife. The President of the United States then had to ask his daughter Julie Nixon Eisenhower to mediate, because “Mommy’s very mad.”

In October, 1980, the Republican nominee Ronald Reagan worried about what scholars have now identified as the emerging “gender gap,” with suburban women increasingly doubting his commitment to women’s concerns. Choosing his words carefully on the campaign trail, Reagan promised: “one of the first Supreme Court vacancies in my administration will be filled by the most qualified woman I can find.”

Within months of inauguration, President Reagan had a court seat opening in June, 1981. His adviser Lyn Nofziger deemed a woman nominee an “imperative.” Do not “go too far on raising expectations for woman appointees…” the Department of Justice’s Tom DeCair countered, explaining: “we’re not too sure how we feel about affirmative action.”

Reagan selected Sandra Day O’Connor from an impressive list of men and women. In announcing the nomination, Reagan insisted he would not “appoint a woman merely to do so. That would not be fair to women nor to future generations of all Americans whose lives are so deeply affected by decisions of the Court.”

Although they sound pedantic, such distinctions are patriotic. Constructive hypocrisy keeps ideals intact while adapting to changing realities. Accepting the political paradox that today’s crusaders against racism and sexism judge people by color and gender, it nevertheless keeps defining race or gender as somewhat significant but not categorically conclusive.

Viewing race or gender or any identity dimension too rigidly reflects a more worrisome trend of treating politics as a game of absolutes – be it from the Left or the Right. In 1958, the liberal philosopher Isaiah Berlin warned that “one belief, more than any other, is responsible for the slaughter of individuals on the altars of the great historical ideals”: the belief that somewhere “there is a final solution. This ancient faith rests on the conviction that all the positive values in which men have believed must, in the end, be compatible.”

Berlin chose his words carefully. This totalitarian instinct to package everything in one neat box – branding it – and us – with sweeping, reductive labels, threatens our democracy. It leads to the nonsensical but harmful and increasingly ubiquitous dismissal of American Jews as having “white privilege,” no matter what their class – or color. And it leads to obnoxious talk about Black conservatives as “race traitors,” suggesting that the only “diversity” too many social justice warriors can tolerate is diversity of skin color but never of thought.

Good democrats improvise, living with contradictions, navigating nuance. As Theodore Roosevelt said, when appointing Oscar Straus: “I have a very high estimate of your character, your judgment, and your ability, and I want you for personal reasons. There is still a further reason: I want to show Russia and some other countries what we think of Jews in this country.”

Such messy but precedent-breaking, merit-friendly messaging inspired Ruth Bader’s ancestors, she said, to “leave the old country, when Jewish ancestry and faith meant exposure to pogroms and denigration of one’s human worth.” Testifying before the Senate in 1993 as a Supreme Court nominee, Ruth Bader Ginsberg proclaimed: “What has become of me could happen only in America. Like so many others, I owe so much to the entry this nation afforded to people yearning to breathe free.”

Today, like yesterday, America’s ecosystem tolerates some identity exhibitionism. Joe Biden’s Court-oriented identity absolutism, however, risks suffocating us. Such rigidity bars the next Ruth Bader Ginsberg from applying for this Supreme Court seat. And this dogmatism risks discouraging future immigrants like her forbearers from coming to what increasingly looks like a Balkanized, polarized, race-obsessed, illiberal America.

Professor Gil Troy is the author of nine books on Presidential History including Why Moderates Make the Best Presidents: From George Washington to Barack Obama. His latest book, written with Natan Sharansky is Never Alone: Prison, Politics, and My People. Follow on Twitter @GilTroy