Port: As a Supreme Court appointment battle looms, can we acknowledge how awful the politics of identity are?

A Black woman should be appointed to the Supreme Court because she has the resume of accomplishments for the job, not because a white man made a campaign promise.

FILE PHOTO: Biden speaks about his administration's response to the COVID-19 surge from the White House in Washington
FILE PHOTO: President Joe Biden delivers remarks on the administration's coronavirus disease (COVID-19) surge response in the South Court Auditorium at the White House in Washington.
Kevin Lamarque / Reuters
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MINOT, N.D. — Justice Stephen Breyer, who was appointed to the U.S. Supreme Court by President Bill Clinton, has announced that he'll be stepping down from the court.

Thus commences what I hope will be a boring and routine appointment process for his successor. The battle royals that have encompassed past appointment proceedings, notably the hearings for Justice Brett Kavanaugh, have been a national disgrace.

Remember when former North Dakota Sen. Heidi Heitkamp told us she could discern Kavanaugh's guilt in the phony-baloney accusations sexual assault against him not through a review of the relevant facts, few and tenuous as they were, but because of his body language ?

I'm not sure the word "disgrace" does justice to that travesty of a proceeding.

Anyway, Joe Biden is president now. He can nominate who he sees fit, though he should be mindful that his party currently has only a technical majority in the Senate, thanks to Vice President Kamala Harris' tie-breaking votes.


Barring some evidence that the nominee is grossly unqualified, the Senate should swiftly confirm.

That's what should happen, anyway.

I don't have a lot of confidence that it will.

Somehow, Trump-aligned "conservatives" went full circle, from prudent skeptics of authoritarianism to its footsoldiers, Rob Port writes.

But before that process kicks off, can we pause for a moment to recognize the odious identity politics President Biden has already injected into the situation?

Biden made a campaign-trail promise to appoint a Black woman to the Supreme Court if he got the opportunity and, by all accounts, he's going to stick to that promise, and what a terrible thing for the Black woman who ultimately gets that call.

The Atlantic has a profile of Judge Ketanji Brown Jackson, who serves on the D.C. Circuit Court of Appeals, which is widely considered to be second in importance, in American judicial venues, only to the Supreme Court.

Judge Jackson has the bona fides. She is a Harvard graduate and edited the Harvard Law Review. Kavanaugh once clerked for the justice he replaced on the Supreme Court, and so has Jackson, assuming she gets the nomination and is appointed. She clerked for Breyer, and two other federal judges, earlier in her career.

Kavanaugh also served on the D.C. Circuit Court of Appeals before his appointment.


Conservatives might not like her judicial philosophy, but that's hardly disqualifying. Elections have consequences. Biden won in 2022, and gets to pick the judges he likes.

As a matter of resume, a candidate such as Jackson checks all the relevant boxes.

Unfortunately, if she is appointed, her success will be clouded by Biden's identity politics.

Did she surmount that highest peak in her career because she earned it? Or because a white man made a campaign promise?

To be fair to Biden, this sort of race/gender politics in judicial appointments has been practiced by Republicans, too. "Reagan Pledges He Would Name a Woman to the Supreme Court," the Washington Post reported in 1980 . He would go on to nominate Sandra Day O'Connor to the court.

His Vice President and successor, George H.W. Bush, would later consider race an important part of the strategy in nominating Justice Clarence Thomas.

But identity politics are not less offensive when practiced by Republicans. "The replacement will be chosen only after the field is radically winnowed by open race and sex discrimination, which have gone from being illegal to being celebrated and practiced by a president of the United States," famed columnist and editor Andrew Sullivan wrote of the Breyer vacancy.

That strikes me as accurate. Politics, as practiced by politicians, has always been an exercise in pandering. I'm not sure we'll ever get them to stop governing in a way that merely checks boxes for the various constituencies in their bases.


Still, do we need to be so glib about it? To the point where, to go back to Sullivan's words, the president of the United States is openly disqualifying candidates for offices as important as Supreme Court Justice because of their race and gender?

Candidates such as Jackson or Leondra Kruger, a justice on the California Supreme Court who clerked for former Justice John Paul Stevens and is also considered to be on Biden's shortlist of candidates, are qualified to be appointed to the Supreme Court not because of their gender or their race but because of what they've accomplished as individuals.

That's all that should matter.

Related Topics: U.S. SUPREME COURT
Opinion by Rob Port
Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at Click here to subscribe to his Plain Talk podcast.
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