Courts

I Think I Figured Out Biden's Supreme Court Pick

This is how you show your work when you make absurd claims, Ilya.

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Books on shelf with open book and judge gavel

(Image by Getty)

Since it’s already taken well over a week to install the new sitting Supreme Court justice, the meta-level discussion of who ought to be next has had some time to ferment. Claims about merit and objectivity run rampant, sure, but one key point seems to be left out of the conversations. As lawyers, we must remember that “we are all textualists now” — these lofty notions of desert and objectivity need to be discussed in relation to the relevant document: our great Constitution.

According to Supremecourt.gov, here is what a close reading of that hallowed parchment leads us to conclude.

The Constitution does not specify qualifications for Justices such as age, education, profession, or native-born citizenship.

Well, shit. It would appear that we are in a no man’s land without clear criterion for judgment — if the Constitution is silent, everything is permitted. Or is it?  Despite the fact that we still don’t have a named nominee, there has already been heavy policing. Biden’s pick has to be made in light of a popular argument that’s been floating around the internet: because Biden promised to nominate a Black woman, his nomination won’t be as good as it would have been if he considered all of the options. Well, best believe I’ve done some option considering.

What we know is that that there are a wide variety of backgrounds that could fill the seat. We limit ourselves if we just assume a classically trained lawyer is the best fit for the job. Nothing prevents a shaman or a jester from filling the role. I’d go so far as to say that a rich, varied background could bring some much needed zest to the bench. Even if their studies have been more barbarian than Barbri, we should all intuit that a blacksmith could figure out their way around a gavel. Maybe if we had a justice with a background in singing, we could get some really moving opinions on the significance of intellectual property in our NFT era. Put simply, once we factor in the options President Biden really has to consider, he’s only left with one real choice.

We’ve gotta talk brass tacks. Desirable attributes usually cost time and money and getting the most out of your resources requires strategic investment. Cool in theory, sure, but how do you do this in real life? First, you recognize your problem. Second, you acknowledge the parameters of your engagement. Finally, you decide on an optimal solution to your circumstances.

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The Problem: We are in pressing political times and there are no hard prerequisites that limit the vast pool of potential candidates. This isn’t a massive hurdle though — you didn’t go to law school to be an accountant, you went to Think Like A Lawyer. And if you didn’t, I did. This outline will be enough to keep you on the curve.

The Parameters: Here is where it gets difficult. Here we factor in the understood time-honored traditions or feasibility heuristics that limit our horizons. Like:

Lifetime appointment: Electric word “life.” It means forever and that’s a mighty long time. Justices that start at 30 are likely to have a longer judicial career than those who sit at 103. It’s an open secret that when it comes to judicial nominations, there’s a strong incentive to rob the cradle of law. The small, six-year age gap between nominee hopefuls Ketanji Brown Jackson and Leondra Kruger has already played a part in some political analysts’ evaluation. In short, the perfect Supreme Court justice faces the Ash Ketchum dilemma: they have to be young with decades of experience. While nothing prevents appointing some 19-year-old K-JD, I’m gonna set a soft cap for someone who can get into a bar without fear of their fake getting detected. It is canon by this point that qualified justices like beer, after all.

Being Good at Book Readin’: If you’ve been on legal Twitter long enough to know what it is, you know that lawyers are a detail-specific bunch. Representing known climate change deniers is one thing, but a comma splice can be career ending. The ideal justice needs to be more than smart: the right fit would feel a rush of unmitigated glee at the proper use of the phrase “begs the question.” Which, to be clear, denotes the use of a circular argument, not that you want to ask a follow-up question. If you take away anything from this, please let it be that. Good Lord.

Apparent Objectivity: While arguably true that “[They] are not final because they are infallible, but they are infallible only because they are final,” I would rather not know how my justice will vote based off party affiliation and funders. While it’s nice to get lip service about making unbiased decisions and crying in the corner when you’re done, I put way more trust in political science results than judicial phenomenology. And the data show decision making is pretty partisan. We need a justice who actually thinks about the issues at hand fair-handedly, not one that acts as Fed Soc’s right hand.

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They’ve Gotta Be Attractive — Ideally A Celebrity: We’re in the middle of a rule-of-law crisis and the halo effect is real. Don’t blame me for speaking frankly on what deciding who sits on our highest court has come down to. Let us not forget the lesson of the JFK/Nixon debate: you ignore optics at your own peril. And the cult of personality is real; we’ve already had two TV Presidents (Reagan and Agent Orange) and a Governator. And if that’s not enough, look no further than RBG’s cult status among young millennials. Remember: we are the anomaly. I’d be surprised if our neighbors up north could even tell their Supreme Court Justices apart. Your head is in the ground if you don’t think a healthy career in Hollywood wouldn’t be a boon for a court openly struggling for legitimacy.

Potential Swing Voter: While this is latent in points above, it bears repeating. We need some old-fashioned mullet jurisprudence. Business up front, party in the back. Full of decorum and well-reasoned takes, but the occasional wild card thought like “a defendant’s taking the 5th is not shameful” or “4th amendment jurisprudence ought not default to whatever makes it easier for cops to do their jobs.” The closer to apolitical, the better. No, I don’t mean centrist — that’s just what Republicans who don’t want to be swiped left on call themselves. Just someone with a clear basis for their decisions based on reasoned argument (see Good Book Readin’) that is argued reasonably well (see Apparent Objectivity).

They’ve Gotta Be A Black Woman: The offhanded response (that I would prefer to give) is like it or not, ‘dems the rules. Biden made it clear that’s happening — cry about it all you want. Biden would have had to have known that there would be heavy pushback from the right for whomever received his nomination. Biden must have had in mind some household name that cuts across political leanings and age gaps. Someone who, once revealed, would garner “my bads” from even the staunchest members of the opposition.

In summation, the only objectively perfect bipartisan candidate that could satisfy all of the impossible demands placed upon our next Supreme Court justice is the one and only Ms. Betty Boop. Now you may be thinking, “Come on now, Chris, she’s not even real.” True, but may I remind you, the Constitution does not mandate that Supreme Court justices exist corporeally. Not to mention that animated figures like say, Bugs Bunny for example, have had more influence than some of our presidents. Sorry, not sorry, William Henry Harrison. No other candidate really hits the needs on the head quite like Ms. Boop — just look at the facts. She’s a young twenty-something born in 1930. When it comes to likeability, there is no question that she’s independent (not afraid to swing vote), sexy (clearly), and smart. Justice Betty has judicial experience, briefly served as President of the United States (shouts out to Kamala Harris), and is canonically a Black woman.

I expect to hear her nomination by the close of Black History Month, Mr. President.

…Maybe satire is what it will take to get people to realize that making up qualifications based on absolutely nothing just to prevent any real living Black woman from getting on the Supreme Court is dishonest and racist. Bigotry doesn’t become laudable just because you call it free speech. One thing I will tell you is that whoever does get the nomination from Biden will know that most of these “boo hoo what about the First Amendment / I didn’t use any slurs I just leaned very heavily on racial tropes and dog whistling” people aren’t even butting up against free speech issues to begin with. Unless their employer is some permutation of the United States gederal government, most of these attention outbursts are rightly subject to the disciplinary mechanisms that private institutions and public sentiment have at their disposal.

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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