At the last nationally televised debate between Joe Biden and Bernie Sanders, both presidential candidates declared that they would nominate a woman as their vice presidential running mates. Biden also proclaimed that the first chance he’d get to appoint a U.S. Supreme Court Justice, he’d pick a black woman, adding “It’s about time.”
This wrongheaded political gesture by the presumptive Democratic nominee should not sit well with the American electorate. The sole criterion for selection should be the best person available.
When the office first came into existence in 1789, the vice president was the person who received the second most votes in the Electoral College. But in the 1800 election there was a tie between Thomas Jefferson and Aaron Burr, which culminated in selection of the president by the House of Representatives. To prevent such an event from happening again, the 12th Amendment was added to the Constitution, creating the current system where electors cast a separate ballot for the vice presidency.
Ultimately, it was thus the people, through their elected representatives, who made the decision.
That choice was not one to be taken lightly. The vice president would automatically assume the presidency if the president died, resigned or was impeached and removed from office. Over the years no fewer than nine vice presidents have ascended in this way: eight after a president died (John Tyler, Millard Fillmore, Andrew Johnson, Chester A. Arthur, Theodore Roosevelt, Calvin Coolidge, Harry S. Truman and Lyndon B. Johnson) and one (Gerald Ford) after Richard Nixon resigned in 1974.
In addition, the vice president serves as the president of the Senate and may choose to cast a tie breaking vote on decisions made by the Senate. Vice presidents have exercised this latter power to varying extents over the years.
But Biden has left no wiggle room.
In his premature victory celebration he said there are women in this country who, right now, are capable of being president. He’s certainly right about that — the obvious candidates being Sens. Elizabeth Warren, Amy Klobuchar and Kamala Harris, Rep. Tulsi Gabbard and former U.S. Ambassador to the United Nations Nikki Haley.
Even Hillary Clinton remains a possibility, if only in her own mind (“I never say never”).
The 2016 election offered a full panoply of what-ifs, the biggest of which may have been whether Clinton would have pulled out an Electoral College win if then-FBI Director James Comey hadn’t decided to reopen the bureau’s investigation into her emails just days before the election. One result was an immediate drop in her polling. But that’s the way it is in many elections.
The consequences of preselecting a Supreme Court justice on the basis of race or gender are somewhat more weighty. The original court had only six members and heard few cases. Its power and prestige grew substantially under Chief Justice John Marshall, when it established the power of judicial review over acts of Congress and specified itself as the ultimate interpreter of the Constitution in what was perhaps the first landmark decision, Marbury v. Madison.
For the past several decades the court has become increasingly politicized. Clerks hired by each of the justices are often given considerable leeway in drafting opinions. This hiring trend has served to reinforce the impression that the court is a kind of super-legislature that responds to ideological arguments rather than a legal institution responding to concerns grounded in the rule of law. As David J. Garrow, a professor of history at the University of Cambridge, put it in The New York Times, the clerk workforce “is getting to be like the House of Representatives. Each side is putting forward only ideological purists.”
Although it is a unique presidential prerogative to appoint justices to the court, such decisions should not be made without concern for the tenor of the times, and the temperament of the populace.
Even in the wake of events over the past two weeks, for Biden to short-circuit that process — by either naming a running mate or suggesting a Supreme Court nominee based on race or gender — is little more than shortsighted political expedience.
Kenneth Lasson is a professor of law at the University of Baltimore School of Law, where he specializes in civil liberties and international human rights.