WASHINGTON, DC - FEBRUARY 03: Sen. Roger Wicker (R-MS) speaks at the confirmation hearing for Administrator of the Environmental Protection Agency nominee Michael Regan before the Senate Environment and Public Works committee on February 3, 2021 in Washington, DC. Regan previously served as the Secretary of the North Carolina Dept. of Environmental Quality. (Photo by Caroline Brehman-Pool/Getty Images)
Sen. Wicker: Biden's SCOTUS pick would a 'beneficiary' of affirmative action
02:12 - Source: CNN

Editor’s Note: Jeffrey Toobin is chief legal analyst for CNN and the author of “The Nine” and “The Oath.” The opinions expressed in this commentary are his own. View more opinion on CNN.

CNN  — 

Republican Sen. Roger Wicker of Mississippi has already dismissed the Black woman President Joe Biden has promised to nominate to the US Supreme Court as a “beneficiary” of affirmative action.

The implication is Biden is repaying a political debt to the Black Americans who voted him into the White House, rather than acknowledging an oversight to recognize a deserving jurist.

Both can be true. Supreme Court nominations have always been suffused with political considerations, often reflecting the broader politics of the country with remarkable precision. Over the course of US history, it’s clear making politically savvy decisions and picking qualified judges don’t have to be mutually exclusive.

In the early days of the Republic, the principal divisions in American politics were regional. Supreme Court justices also “rode circuit,” that is, they traveled to different regions of the country and presided over cases there. So it made some sense to select justices who represented different regions. There was an informal “Massachusetts seat” on the Supreme Court, a “New York seat” and so on.

The regional differences on the court took on a greater importance as the country began to fracture over slavery. As Lawrence M. Friedman wrote in his magisterial “A History of American Law,” published in 1973, presidents “appointed men because they were southern or because they were not southern, as the case might be.” After President Abraham Lincoln took office in 1861, he struggled with a Supreme Court dominated by pro-slavery Democrats and Southerners. Given three vacancies to fill in 1862, Lincoln diversified the court and nominated loyal Republicans from Iowa, Ohio and Illinois.

As immigration from Europe reshaped the nation during the 19th century, Supreme Court nominations began to reflect this change. There was Justice Roger B. Taney, the first Catholic in a long line that came to include Justices Pierce Butler and Frank Murphy, both of whom were confirmed in the first half of the 20th century. When President Dwight Eisenhower appointed William Brennan Jr. less than a month before his reelection in 1956, it was widely seen as an appeal to Catholic voters.

Louis Brandeis became the first Jewish justice in 1916, paving the way for Benjamin Cardozo and Felix Frankfurter, among several others.

The Civil Rights movement later created the demand for the first African American Justice, Thurgood Marshall, who was appointed by President Lyndon Johnson in 1967.

And in 2009, President Barack Obama made history when he nominated Sonia Sotomayor, the first Hispanic to serve on the Supreme Court.

It’s ironic that Republicans are now criticizing Biden for promising to nominate a Black woman justice when President Ronald Reagan made a similar promise in his 1980 campaign to nominate the first woman. He followed through on that promise with Sandra Day O’Connor, who was confirmed in 1981.

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    In other words, the appointments of Supreme Court justices have always been political acts by presidents. And their choices have reflected the identity politics of their era. Far from striking out in some new direction, Biden has merely updated a tradition as old as the American presidency itself.