For the Supreme Court, Racial and Gender Diversity Matters, But So Does Judicial Philosophy

Update: While applause is warranted for President Biden's nomination today of Judge Ketanji Brown Jackson to the Supreme Court and his rejection of J. Michelle Childs, one good appointment doesn't resolve the decades-long failure of Democrats to develop an alternative legal theory to the bogus originalism/textualism theory concocted by the right-wing and to appoint judges schooled in such alternative theory who can do battle with the conservative originalists/textualists who now dominate the courts.

Of the 115 people who have served on the U.S. Supreme Court, only five have been women and only three have not been white. So it's only right that President Biden has promised to appoint a black woman.

But judicial philosophy should matter, too, and here Republicans have been kicking Democrats' butts for over three decades.

Clarence Thomas--a credibly accused sexual predator who was nominated by George H.W. Bush to succeed civil rights icon Thurgood Marshal--became the most extremist right-wing Justice on the Court. Amy Coney Barrett--whose nomination by Donald Trump to succeed the "Notorious RBG" (Ruth Bader Ginsberg) was rushed through the Senate in record time to deny Joe Biden an appointmen--may turn out to be one of the most consequential Justices to move the Court even further to the right.

Starting from an impressive list of highly qualified black women judges and lawyers, President Joe Biden has reportedly narrowed his short list down to three black women--U.S. Court of Appeals Judge Ketanji Brown Jackson, California Supreme Court Justice Leondra Kruger, and Federal Court Judge J. Michelle Childs. Biden is likely to announce his pick in the next few days--perhaps as early as Friday.

But being black and female doesn't make these three women the same. Brown Jackson is a former public defender, one of the few in a federal judiciary stacked with former prosecutors (and would be the first former defense attorney on the Supreme Court since Thurgood Marshall).

Childs, in contrast, stands out as the most conservative of the three. She was a partner in a management-side law firm who promoted its services to employers by helping them stay union-free. She defended corporations against charges of racial discrimination and helped them fight unionization drives. Child's biggest congressional supporters are Congressman Jim Clyburn (D-S.C.)--to whom Biden owes a political debt for energizing his flailing presidential campaign ahead of the South Carolina primary in 2020--and right-wing Republican Senator Lindsey Graham, also of South Carolina, who proclaimed her a "brilliant choice."

Graham's endorsement should be the final tip-off that Childs is the wrong woman for the job. Republicans have used laser-like focus to appoint the most right-wing possible extremists to the Court with no regard for so-called "bipartisanship." Why should a Democratic president try to appease conservative Republicans with his Supreme Court picks?

And whatever Biden's political debt may be to Clyburn, to hand a lifetime Supreme Court seat to the most conservative of his available picks as short-term patronage would be political malpractice, almost as bad as Biden enabling the confirmation of Clarence Thomas when Biden was chair of the Senate Judiciary Committee.

But the fact that Childs is even on Biden's short list--and may indeed become his nominee--is a sign of Democrats' long-standing failings when it comes to the Courts.

For over three decades, Republicans, led by the Federalist Society, have developed and promulgated the judicial philosophy of originalism/textualism, which is reversed engineered to most often come up with conservative results. They have indoctrinated several generations of young lawyers with this philosophy, have promoted them to cushy corporate law firm jobs, and have packed the judiciary with them. Although Democrats have won the popular vote in seven of the last eight presidential elections going back to 1993, conservative Republicans outnumber Democrats 6-3 on the Supreme Court.

Mitch McConnell has famously said that the best way to change the law is to change the judges. And he's been extraordinarily successful in that effort. Among other things, a majority originalist/textualist Supreme Court has:

• Awarded the Presidency to George W. Bush over Al Gore in the disputed 2000 election.
• All but invented the notion of "corporate personhood" and decided that corporations and wealthy oligarchs may donate unlimited sums to political action committees.
• For the first time in over 200 years, found that individuals have a Constitutional right to gun ownership, conveniently ignoring the actual text of the Constitution tying gun rights to a "well ordered Militia."
• Dismantled the Voting Rights Act by essentially finding that racial discrimination in voting rights no longer needs Federal protection.
• Held that the First Amendment's protections of Free Speech bars unions from collecting mandatory dues from employees whose contracts they represent, even if none of those dues are used for political purposes.
• In the middle of a global pandemic, found that the Occupational Safety and Health Administration has no right to require large employers to mandate Covid vaccines because employees can also contract Covid outside of work.

Now, the 6-3 originalist/textualist Supreme Court seems to be on the verge of eliminating a woman's right to choose and of deciding that the Environmental Protection Agency exceeds its authority if it regulates greenhouse gases for endangering the environment.

Moreover, these so-called textualists are inventing from whole cloth an ominous legal doctrine that never appears in the Constitution--the so-called "non-delegation" doctrine which could allow the Court to strike down major government regulations. As Justice Elena Kagan wrote in her dissent to the vaccine mandate decision, under the non-delegation doctrine, "most of Government is unconstitutional."

But while Democrats oppose these reactionary decisions, they seem to have all but given up any attempt to develop and promulgate a Constitutional doctrine in opposition to originalism/textualism.

Back in 1987, under the leadership of Sen. Ted Kennedy (D-Mass.), Democrats blocked Ronald Reagan's nomination of Robert Bork because they clearly rejected Bork's originalism/textualism. Bork argued that "all that counts" to a judge interpreting the Constitution "is how the words used in the Constitution would have been understood at the time [of enactment]." There's no room in this article to intellectually deconstruct originalism/textualism, but as law professor Eric Segall wrote, "Originalism is nothing more than a misleading label for conservative results." It means that the white men who wrote the Constitution, many of whom were slaveholders, get to define for eternity what flexible terms like "freedom of speech" or "freedom of the press" mean. As Ted Kennedy proclaimed from the Senate floor,

Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is--and is often the only--protector of the individual rights that are the heart of our democracy.

Under a majority originalist/textualist Supreme Court, much that Ted Kennedy warned of has already come about, and much of the rest may be on the verge of coming about.

Back in 1987, many Democrats supported an alternative legal theory often called "living constitutionalism." This theory held that Constitutional interpretation should not be limited to figuring out what the white men who wrote the Constitution meant by their often ambiguous words in the 18th century, but should evolve with the times. But Democrats have largely abandoned further developing the doctrine of a "living constitution" or any other doctrine of Constitutional interpretation to counter originalism/textualism.

Even liberal Justice Kagan proclaimed at her confirmation hearing, "We're all originalists now." She probably doesn't believe that but felt compelled to proclaim it to get confirmed.

If Justice Kagan is really an "originalist," it will be interesting to see how she defends Roe v. Wade, which was a classic living constitution decision. The words "abortion" and "privacy" never appear in the text of the Constitution and it's unlikely that the Framers or the Congress that passed the post-Civil War 14th Amendment believed that they were then originally creating a Constitutional right to abortion.

Roe v. Wade was based on an earlier case, Griswold v. Connecticut, in which the Court found that the Constitution implied a right to marital privacy that included a right to use contraception (which was then illegal in several states). The 7-2 Court majority found that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy."

Then in Roe v. Wade, the Court found that this "zone of privacy" created by "penumbras" and "emanations" in the Constitution was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." It was the right decision, based on theories of Constitutional interpretation that encompass the implicit guarantees of "liberty" in the Constitution and the view that the Constitutional interpretation should evolve as society evolves. But it was as far as you can get from originalism/textualism. And that's part of what conservatives on the Court will argue in seeking to overturn Roe.

While Republicans and the Federalist Society have spent decades developing their theories of originalism/textualism and embedding them in judicial appointments, Democrats have long been MIA in building on alternative theories implied in cases like Brown v. Board of Education and Roe v. Wade. That's part of why Republicans keep kicking Democrats' butts in judicial appointments.

For that to change, Democrats need to go beyond supporting racial and gender diversity in the Courts. They need to imitate the Federalist Society and undertake the task of developing and articulating better theories of Constitutional interpretation, train and promote law students who learn these theories, and then appoint them to the Courts.