Editor’s note: We’re republished this article, following the news that President Biden will nominate Ketanji Brown Jackson for the Supreme Court vacancy created by Justice Stephen G. Breyer’s retirement.
President Biden pledged on the campaign trail — and, with Justice Stephen G. Breyer’s pending retirement, recently confirmed — that he would choose “the first Black woman ever nominated to the United States Supreme Court.” Many Republicans have been quick to decry that promise as divisive or discriminatory, arguing that a nominee’s race or gender should not play a role in Biden’s selection process. But it could well prove good politics for the president.
Paying heed to demographic characteristics, such as race and gender, allows presidents to make history while also appealing to valuable constituencies within their party. Biden is not the first president to do so. Most recently, President Donald Trump and Senate Republicans highlighted Amy Coney Barrett’s status as a working mother when Trump nominated her in 2020 to the Supreme Court, hoping the choice would resonate with female voters in the approaching election. Given Biden’s low approval ratings and Democrats’ difficulties advancing various legislative goals, many suggest that the nomination might allow Biden to secure a win on a major political issue and energize Black and female voters, two core Democratic constituencies.
Here’s what you need to know about how voters react to the race and gender of judicial nominees.
Biden said he won’t make an ‘ideological’ Supreme Court pick. Republicans do exactly that.
Shared race, but not gender, increases Americans’ support for nominees
In our research, we conducted a survey of 2,500 Americans in January 2017 to study how a nominee’s race and gender shape public evaluations of nominees. The survey was administered by YouGov immediately before Trump nominated Neil M. Gorsuch to the Supreme Court and was weighted to reflect the national population.
We presented our respondents with a profile of a hypothetical Supreme Court nominee that included the nominee’s race (possible options were White, Black and Hispanic) and gender (possible options were man and woman), as well as other characteristics, such as their age, the law school they attended and their position on abortion. We randomly assigned respondents to see different nominee characteristics. So respondents evaluated a hypothetical nominee with one of six combinations of race and gender: White man, White woman, Hispanic man, Hispanic woman, Black man or Black woman. We asked respondents to evaluate the nominee across three dimensions: support for the nominee, assessments of the nominee’s qualifications and trust in the nominee’s impartiality.
First, we found that race significantly shapes Americans’ attitudes toward judicial nominees. Respondents who shared the nominee’s racial identity were, on average, six percentage points more likely to express support for the nominee. Shared race increased respondents’ trust in the nominee’s impartiality and perceptions of the nominee’s qualifications by similar amounts.
However, we found no evidence of a similar effect for gender. Shared gender did not significantly boost support for a nominee or perceptions of their qualifications, and had only a negligible effect on evaluations of the nominee’s impartiality.
We also examined whether the combination of race and gender mattered in shaping support. In most cases, we found no evidence that sharing both a nominee’s race and gender boosted support in comparison with sharing just race. For example, we found no distinguishable differences in how White women evaluated White women and White men as judges. This was also true for White men, Black men, Hispanic men and Hispanic women. However, we did find that Black women were roughly 12 percentage points more supportive of Black female judges than Black men on the bench. In other words, gender mattered for Black women — but none of the other groups we studied.
Partisans react differently to race and gender
Democrats and Republicans evaluated nominees with given demographic characteristics differently. Specifically, Black Democrats were more likely to prefer nominees of their own race. For example, Black Democratic respondents were 17 percentage points more likely to express support for a Black judicial nominee than a Hispanic nominee and 23 percentage points more likely to express support for a Black nominee than a White nominee. To a lesser extent, White Republicans also preferred nominees of their own race. White Republicans were seven percentage points more likely to express support for a White nominee than a Black nominee, and four points more likely to support a White nominee than a Hispanic nominee (although this latter estimate falls short of statistical significance). It’s possible that the difference in these magnitudes was due to the context of the Trump presidency, as Republicans knew they would be getting a nominee they were ideologically compatible with. The nominee’s gender didn’t affect either Republican or Democratic respondents’ support.
What were Democrats thinking when they tried — and failed — to pass their voting rights bill?
The politics of it all
Black Americans place a high value on what social scientists call “descriptive representation” — or having a representative who looks like you — in the judiciary. This may be because they’ve been historically underrepresented on the Supreme Court and in the federal judiciary more generally. In fact, the lone Black member of the Supreme Court over the last quarter-century, Justice Clarence Thomas, generally does not represent the political views of most Black Americans. For example, Thomas is a noted opponent of affirmative-action programs, which more than two-thirds of Black Americans support. So Biden’s nomination of a Black woman is thus likely to be well-received by most Black Americans, especially Black women — a group that places a unique emphasis on nominees sharing both their race and gender identity.
However, contemporary Supreme Court nominations have been highly politicized, something that was especially notable during Barrett’s nomination and confirmation. As a result, most Republicans are unlikely to support anyone Biden nominates. In particular, White Republican women are unlikely to support his new nominee based solely upon her gender identity.
The GOP has attacked Biden’s decision to nominate a Black woman. But it could energize a core Democratic constituency and significantly boost Democrats’ support for the nominee. Fulfilling his campaign promise signals good faith to voters and could be good politics for the president.
Don’t miss any of TMC’s smart analysis! Sign up for our newsletter.
Jaclyn Kaslovsky (@JKaslovsky) is an assistant professor in the department of political science at Rice University.
Andrew R. Stone is a postdoctoral research associate in the department of political science at Washington University in St. Louis.