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The Democrats’ Dangerous Game of Identity Politics
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The Democrats’ Dangerous Game of Identity Politics

If only merit were the norm for choosing Supreme Court justices.


Like Ron Burgundy, the news of Justice Breyer’s retirement is kind of a big deal. I’m not going to dive into a lot of legal punditry, for all of the obvious reasons—I’m not a lawyer, I need to do homework on the potential nominees, we have far better qualified legal pundits at The Dispatch, and there’s plenty of time to wade into this stuff.

But let’s do some political punditry. I think that if Biden were sure he could get Kamala Harris confirmed, he’d be smart to get her out of his administration and onto the court. Of course, this would depend on her wanting to do it, which is doubtful in the extreme. (Most people who get the presidential bug never shed it. And while William Howard Taft did manage to be both the president and a Supreme Court justice, I’m not sure it can work the other way today. Yeah, yeah, Charles Evans Hughes tried it in 1916. But he failed, alas. And besides, the world has changed a lot since then. Hughes was nominated at a convention; he didn’t campaign in some dumb primary).

Still, putting Kamala Harris on the court would solve two political problems—the first being Kamala Harris herself. If you think she’s a major asset for the Biden administration, we can have that argument another time. But frankly, I don’t know anyone who actually believes that. This might be too clever by two-thirds in that the base of the Democratic Party might balk at the idea. But if I were a political adviser to the Biden White House, I’d at least run some focus groups and polls on the question. 

The second problem: Biden committed himself to appointing an African American woman on the court. Harris fits the bill, and while I don’t think she’s the best qualified person, she’s qualified enough for political purposes. Now, it should be no surprise that I don’t like these identity politics games, but we should acknowledge that there’s a long history of this kind of thing when it comes to judicial appointments. There was a time when people talked openly of the “Jewish seat” on the court. More recently, Mario Cuomo dropped partisan concerns and lobbied—very aggressively—for Reagan to put fellow Italian American Antonin Scalia on the court. Why? Because amazingly, before Scalia, not one of the previous 106 Supreme Court justices was an Italian American—and only seven(!) had been Catholic. Clarence Thomas’ nomination was supported by a majority of African Americans, even though a majority of African Americans were—and are—Democrats (you can look it up). Obama picked self-styled “wise Latina” Sonia Sotomayor at least in part because she was Hispanic. 

It’s fun to think about the political opportunities that would come with Biden being able to get a do-over for his VP pick. I have to assume Pete Buttigieg would be the frontrunner, even though I think he’d be a bad choice. The last thing this administration needs is to lean into even more condescending technocratic wokeness, even if it comes with the first openly gay vice president. (Shout out to Rufus King!)

The smart play, if Biden had not foolishly promised to appoint an African American woman to the court, would be to pick Judge Sri Srinivasan, who, unlike Harris, would actually be a very formidable Supreme Court justice. 

But legal qualifications really aren’t the foremost concern here (even if I think they should be). If they were, Biden would never have vowed to limit himself to a narrow demographic category, even though I should say that some of the African American women in contention may be eminently qualified. This is one of the problems with pre-committing to such things: It attaches stigma even when it’s undeserved. All of the likely nominees would be in a better position today if Biden hadn’t made the promise in the first place.

Politics in general involves questions of political merit that are often in conflict with other definitions of merit. If you’re shopping around for a great heart surgeon, you probably don’t have—and certainly shouldn’t have—a long list of demographic or religious requirements.

         “Great news! We found the best cardiac surgeon in the state!”

         “Is he Hmong?”

         “Um, no.”

         “Well, is he a Unitarian?”

         “Sorry, no.”

         “Keep looking.”

Barack Obama insisted that the key requirement for a Supreme Court justice should be empathy. “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African American or gay or disabled or old,” Obama announced during his campaign, “and that’s the criterion by which I’ll be selecting my judges.” As a senator, he opposed John Roberts’ nomination because in the “truly difficult” cases, a judge must rely upon “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.” In short, he explained, “the critical ingredient is supplied by what is in the judge’s heart.”

Never mind that this runs against the actual oath taken by Supreme Court justices:

“I, [Ramesh Ponnuru], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [associate Justice] under the Constitution and laws of the United States. So help me God.”

I am very tempted to spin- off another thousand words on why this empathy standard is medieval and contrary to the rule of law. Suffice it to say, the idea that the meaning of the law should hinge on the feelings of a robed unelected priest figure, regardless of what the law actually says, is not exactly a modern idea. 

Asian drift.

But let’s get back to the punditry. Why Sri Srinivasan? Because he would be the first Asian American on the court, and the Democrats have an Asian American problem. In this excellent piece, Ruy Teixeira notes that “according to Pew, Biden has lost support twice as fast among Asian voters as among whites since July.”

Why? One of the biggest reasons is almost surely education. Across the country, progressives have been trying to dismantle gifted-and-talented programs, standardized tests, etc. The Thomas Jefferson School for Science, arguably the best high school in the country, dropped its legendary admissions test. From the Washington Post:

The changes take effect immediately, meaning this year’s crop of eighth-graders—many of whom have spent months, if not years, preparing for the test—will not sit down this fall to take the two-part exam on math, reading and science.

The key phrase here is “many of whom have spent months, if not years, preparing for the test.” I don’t have numbers for you, but I can assure you that the students who spent months or years preparing for the test are disproportionately Asian Americans from immigrant families. The situation is even worse in higher education. I highly recommend David French’s newsletter on this.

I know we’re far afield from Supreme Court stuff, but bear with me. One of, if not the, main reasons immigrants come to America is on the promise that their kids will have the opportunity to carve out a better life. For many Asian American immigrants—not to mention African immigrants and immigrants generally—the way you get that better life is by excelling at school. Telling one ethnic group, “We’re going to pull up that ladder because too many of your kind are getting up it compared to other groups,” is evil in my opinion. But reasonable people, and certainly some people with a selective understanding of “empathy,” can disagree. But what is not really up for debate is that pursuing such policies will have political consequences. It’s a peculiar form of bigotry that says we should celebrate when some ethnic or racial groups use politics for their perceived collective betterment, but it’s outrageous that other groups that get hurt in the process shouldn’t complain or do likewise.

There are other factors in growing Asian—and Hispanic—discontent with Democrats and progressivism. Chief among them: crime. Writes Teixeira:

One problem is that Asians are worried about public safety and leery of a Democratic party that has become associated with “defund the police” and a soft approach to containing crime. Another is that Asians, like Hispanics, are a constituency that does not harbor particularly radical views on the nature of American society and how it must be remade to cleanse it of intrinsic racism and white supremacy, a viewpoint increasingly identified with Democrats. They are far more interested in how they and their families can get ahead in actually-existing American society.

As I keep saying, one of the biggest problems with American politics is that American politicians want to talk about the problems they want to have, not the problems we actually have. A week doesn’t go by without Donald Trump insisting that the “stolen election” of 2020 (it wasn’t stolen) should be the foremost issue of our politics. Other GOP Trumpists insist social media censorship is an overriding concern of normal Americans (it ain’t). 

But the problem is most acute with the Democratic Party right now. Most normal Americans are not passionately concerned with election rules, even if you think they should be (we’ve had that argument). But they are concerned with inflation, crime, and the education of their children. And guess what? Asian and Hispanic Americans are normal Americans. Yes, the pandemic is surely a concern for many normal Americans, but the way Biden and the Democrats talk about it appeals to the voters they already have in their corner. Moreover, the way elite Democrats talk about things like race, gender, and ethnicity doesn’t even appeal to most of the normal Americans they’re allegedly speaking for. I’ll spare you another Latinx or “birthing person” rant.

Instead, let’s get back to Sri Srinivasan, who comes from an immigrant family that invested everything in education (and yes, I know I have a soft spot in my heart for Indian Americans from Kansas). Putting him on the court won’t convince the country Biden is focusing like a laser on the problems they care about (no appointee would). But it would—or at least could—send some other valuable messages. One would be that Biden is his own man and not a captive of his base (as I write today, the man desperately needs some kind of Sister Souljah moment). It would also send a valuable message to a demographic constituency it is losing ground with. All ethnic minorities like to see one of their own on the court. That’s a normal thing, regardless of my objections. But the most important message—if crafted smartly—would be that in America, old-fashioned merit is still the norm. 

Jonah Goldberg is editor-in-chief and co-founder of The Dispatch, based in Washington, D.C. Prior to that, enormous lizards roamed the Earth. More immediately prior to that, Jonah spent two decades at National Review, where he was a senior editor, among other things. He is also a bestselling author, longtime columnist for the Los Angeles Times, commentator for CNN, and a senior fellow at the American Enterprise Institute. When he is not writing the G-File or hosting The Remnant podcast, he finds real joy in family time, attending to his dogs and cat, and blaming Steve Hayes for various things.