The unbearable whiteness of being Trump’s judicial picks | Will Bunch
Whoever Trump picks for the Supreme Court on Monday is guaranteed to be like 94 percent of his other judicial nominees: A white person. Why the president's notion of an "all-American" justice is terrible for America.
The picture was perfect — just like President Trump surely imagined it back in the days when becoming "leader of the free world" was just his weird Walter Mitty-style fantasy. As Trump humblebragged about his awesome responsibility in choosing a Supreme Court justice, Judge Brett Kavanaugh — just a touch of gray in his mildly '80s-ish moptop — stood to the president's right, enveloped by his two adorable children and his attractive wife.
Nothing could shatter the too-ready-for-primetime framing of this 9 p.m. announcement that forced NBC to sandwich Trump and his newest member of the Supremes smack in the middle of "American Ninja Warrior" — not even when Kavanaugh finally moved his lips and the very first words that came out were a lie.
"No president has ever consulted more widely or talked to more people from more backgrounds to seek input for a Supreme Court nomination," said the 53-year-old jurist — pretending that Trump hadn't just wrapped up a process in which he was spoon-fed names by just one far-right lobbying group that were then culled into four almost indistinguishable white blobs of pasty conservative dough, in a process that many pundits think was rigged in cahoots with retiring Justice Anthony Kennedy even before Trump staged his week-long episode of "American Justice Warrior" or whatever the heck you'd call this fake reality show.
The Madison Avenue-style myth-making and the empty, dishonest calories of the bland product being sold inside Trump's glitzy packaging helped, at least for a few prime-time minutes, to obscure the fights over abortion, LGBTQ rights, climate change and the powers of authoritarian presidency that are what's really at stake.
The Kavanaugh pick was, arguably, the most consequential decision of the Trump presidency, and yet — unless you happen to be a family member or a former college roommate of one of the four unexciting finalists — it was also, arguably, the most boring. For one thing, Kavanaugh and the rest of Trump's Final Four bracket (which only has a right half) all came from a list of 25 remarkably similar people who rolled off the right-wing's judicial assembly line, the Federalist Society and its ruthlessly efficient leader, Leonard Leo.
And that list was created for one reason, which is to prevent the kind of surprise that tortured past GOP presidents who thought they'd appointed conservative fellow travelers in justices like Earl Warren, Harry Blackmun or David Souter, only to see them go all crazy for pinko stuff like civil liberties once they put on those black robes for life. For Republicans hellbent on expanding the human rights of corporations — while sharply curbing yours — the best surprise is no surprise.
In other words, the Federalist Society list was created so that the president could pick any Tom, Brett or Amy and know he'll be pleasing the conservative allies he so desperately needs up on Capitol Hill with a justice who will worship at the altar of Corporate Personhood, back up Big Business' right to buy elections, steal workers' wages or fire that frozen truck driver who chose life over dying with his cargo, and generally make it harder for black folks to vote, for gay people to live their lives and for women to control their reproductive rights.
The mix-and-match corporatist ideology of Kavanaugh and the other finalists freed Trump to make his Supreme Court pick based on the things that really matter…to Trump. For example, whether the president has "personal chemistry" with the future justice and whether his pick has a manly, heroic sounding one-syllable name … like Brett.
Or whether his pick has an attractive and loyal spouse who can stand next to the nominee at his (or her) swearing-in in some version of a political Norman Rockwell portrait. Or whether the next member of the Supremes went to Harvard or Yale, the schools even better than the Wharton School at the University of Pennsylvania where the "very smart" Trump graduated 50 years ago.
The shallowness sounds crazy, but it's been reported again and again that these are the superficial markers that Trump wants in a Supreme Court justice — and not the gravitas of whether your not-yet-born grandkids and mine will have any rights in the workplace, the voting booth or the bedroom while they tool around what's left of America in their flying cars in 2055. The president has said he wants a judge "from central casting" — someone with the right look, who brings a wholesome Jimmy Stewart of Gregory Peck star-power to the "role" of associate justice.
Even before the unveiling, Politico was reporting that one reason the D.C. appellate judge was a front-runner was that Trump became enamored with a photograph of Justice Kennedy swearing in his former protogee Kavanaugh as appellate judge at the White House "while his wife, Ashley, dressed in a crisp, pale pink suit and pearls, holds the Bible under his hand and smiles." As the obligatory anonymous Trump insider told Politico, "It looked all-American."
But let's be clear. When Trump is casting his "All-American" prime-time epic, that role has already written for a white character, preferably a man. Say what you will about Judge Brett Kavanaugh's attractive family, his girls' basketball coaching skills or his admirable talk about seeking diversity when he hires his law clerks. But at the end of the day he is still contributing to — if I can pun off a 1980s art-house movie title — the unbearable whiteness of being a judge in Trump's America.
Even the NFL — a sport that is literally battering to death the brains of its participants — can claim some moral superiority over the Trump White House. After all, pro football — embarrassed by its paucity of black coaches — imposed in 2002 the "Rooney rule" that requires teams to interview African-American candidates for a coaching vacancy, which has had the desired effect of increasing diversity. But there is no "Rooney rule" for the Supreme Court, nor has there been evidence of any non-white candidates marring Trump's idyllic search for everybody's All-American.
Instead, Trump's SCOTUS search mirrored the his broader scheme to reshape the American judiciary in a whiter shade of pale. In this case, 100 percent of the four candidates that the president reportedly interviewed were white, and 75 percent were male.
That dovetails almost exactly with Team Trump's wider (and whiter) makeover of the judicial branch. In February, USA Today reported that a whopping 92 percent — 80 out of 87 — of Trump's initial judge nominations are white, a rate that hadn't been seen since the 1980s. Of the remaining seven, five are Asian-Americans, with only one African-American (they comprise 12 percent of America's population) and only one Hispanic (17 percent of the population). Only about a quarter are female, a steep drop from Barack Obama's two terms but in line with the pre-Obama presidents. And none of Trump's nominees have been openly gay.
Does that matter? Isn't the only thing that counts, as conservative MLK "fanboys" like to remind us, the content of their character? Yes and no. In a more perfect union, our top judges won't only have exquisite character but also be able to make decisions based on experience and wisdom that exudes from the actual rainbow of modern American life, not from the 1950s "Father Knows Best" black-and-white sit-com remake.
"When you prioritize a type — only people who went to Harvard or Yale, for example — then you're limiting the kind of experiences" that new judges bring to a court, Michael Nelson, a law professor at Penn State, told me this week. Nelson just co-authored a paper showing that women and non-white judges are more likely to cite other female or non-white jurists in their opinions, thus amplifying diverse voices in a system of justice that was too white for too long.
When Obama appointed Sonia Sotomayor to the High Court as the first Hispanic-ever justice in 2009, he wasn't just adding an already accomplished federal jurist and Yale Law grad, but a woman whose wisdom is informed by experiences growing up Latina with a widowed single mom in a working-class corner of the Bronx, a lifestyle that a Kavanaugh or a Neil Gorsuch can only read about. Sotomayor's ferocious dissents on cases like Trump's travel ban or issues surrounding police violence reflect real American life as it is lived by the less privileged — the underdog viewpoint that is nowhere to be found as Trump assembles his "all-America" justice team.
That's a big problem, and yet it wasn't that only thing wrong with the picture beamed out from the East Room of the White House. Trump managed to present his shining white vision of American justice at the same time his administration is treating those who don't match their image of what makes America great again — desperate brown-skinned refugee moms and their crying toddlers at the southern border, or Muslims who have the "wrong" country stamped on their visa, or Asian soldiers who've been serving the United States but now face the shock of deportation — with stunning cruelty. That contrast is not a coincidence. It's what Trump is going for. And it's revolting.
Now that the TV lights are off and the Nielsen rating are in, many Americans and some of our elected officials will try to steer the national conversation back to what matters most — the future of our rights to breathe clean air, cast votes without undue interference, be treated humanely in the workplace, and for women to make decisions about their own bodies. But my great fear is that a true debate ended the day we allowed Trump to decide what it means to be "all-American."