Joe Biden’s Supreme Court Social Experiment

Nominating Judge Ketanji Brown Jackson is presidential malpractice

During a press conference in June 2020, presidential candidate Joe Biden pledged to appoint a Black woman to the U.S. Supreme Court if the opportunity presented itself as president. At the time, and even today, few Americans understood the social experiment to which Biden committed the country.

On January 27, 2022, Supreme Court Justice Stephen Breyer announced his retirement from the court at the end of the current term, allowing President Biden to fulfill his pledge to nominate a Black woman to the court. On February 25, 2022, Biden nominated Judge Ketanji Brown Jackson to become the 116th associate justice of the U.S. Supreme Court, after what the White House characterized as a “rigorous process.” But was it?

According to the Supreme Court’s website, “The Constitution does not specify qualifications for Justices such as age, education, profession, or native-born citizenship. A Justice does not have to be a lawyer or a law school graduate ...” In theory, Biden could have selected his SCOTUS nominee from among all 333 million people in the United States, or all 258 million adults in the country. But since all Supreme Court justices have been trained in the law, a non-lawyer nominee would almost certainly be rejected by the Senate. So, let’s look at the pool of lawyers.

According to Profile of the Legal Profession 2021, published by the American Bar Association, there are more than 1.32 million active lawyers in the United States, a large pool of candidates from which Biden could have selected his nominee. In recent times, however, SCOTUS nominees typically have experience on the federal bench or as a state supreme court justice, which still would have resulted in a robust pool of candidates.

There are 890 authorized federal judgeships, according to the United States Courts website. Subtracting the nine members of the U.S. Supreme Court leaves upwards of 881 federal judges from which Biden could have chosen his nominee. In addition, there are 345 justices of state supreme courts, according to State Supreme Court Diversity, published by the Brennan Center for Justice. Subtracting vacancies on the federal bench or state supreme court benches at the time Biden made his selection leaves a healthy pool of upwards of 1,226 highly qualified candidates to choose from—but that wasn’t Biden’s pledge.

Instead, Biden chose from only 70 people (56 Black women are Article III federal judges and 14 Black women are state supreme court justices). Coaches evaluate more people for an NFL or NBA team each year.

President Joe Biden’s promise to select a Black woman for the U.S. Supreme Court committed the country to a social experiment involving only 70 people for one of the most critical positions in the federal government. Perhaps Ketanji Brown Jackson would have emerged as the best nominee among all qualified candidates. We’ll never know because of Biden’s self-imposed political-pandering stunt, which equates to presidential malpractice.

Lawrence J. McQuillan is a Senior Fellow and Director of the Center on Entrepreneurial Innovation at the Independent Institute. He is the author of the Independent book California Dreaming.
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