With Justice Stephen Breyer’s announced retirement, public discussion has turned to whom President Biden will nominate for the United States Supreme Court. Unfortunately, the focus of the media, politicians, and pundits so far has been overwhelmingly on two characteristics, race and sex, as President Biden has promised to nominate a black woman.
This focus is sad for several reasons. First, it distracts us from the qualities that matter most in a judge. Martin Luther King Jr. famously said he looked forward to a time when his children would “not be judged by the color of their skin but by the content of their character.” Judicial candidates should be assessed not by their skin color but their judicial ability and philosophy. How learned in the law is the potential nominee? Does she show skill in the art of composing clear and thoughtful opinions that explain the law, the facts, and the reasoning in applying the case? Does she see judges exercising “merely judgment” as Federalist 78 defined judicial power?
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