Good For the Goose but Not for The Gander: Biden’s Promise to Appoint a Black Female to The Supreme Court and Title VII Principles
Authors: Conklin Michael 
Published: May 2022

The 2022 retirement of Justice Stephen Breyer and President Joe Biden’s promise to exclude all non-Black females from consideration for his replacement has sparked controversy. Some have praised the decision as essential to ensuring diversity on the Court and point out that there are more than enough qualified Black women to select from. And some believe the decision will result in corporate leaders making similar calls for equity in their own companies. Others have criticized the decision, expressing a belief that discriminating on the basis of race and gender is “not a great start in selecting someone sworn to provide equal justice under the law.” Even some commentators on the left have criticized Biden’s promise due to how it might “needlessly tokenize[]” the eventual candidate and “doom[] them to racist and sexist skepticism before they even [get] the nod.” A survey found that over three-fourths of respondents believe Biden should consider all possible nominees.

Biden’s promise was initially made at the 2020 Democratic primaries. It was likely a wise strategic move by then-candidate Biden, as the pledge prompted the loudest cheers of the night at the Democratic debate where it was announced. It was also a powerful signal to those who doubted Biden’s treatment of Black women after his role in the 1991 Anita Hill hearings. The pledge may also have been a response to how Democrats underperformed among the Black female demographic in the 2016 presidential election. Indeed, Biden improved among that demographic in 2020. Regardless of the practicality of Biden’s pledge, refusing to consider people for a job based solely on their race and gender typically implicates Title VII employment discrimination protections.

Title VII employment discrimination protections do not apply to the position of Supreme Court Justice due to its classification as an employee in the excepted service and not the competitive service.[12] This Article looks beyond that fatal determination to analyze what the result of Title VII principles would be if applicable. This analysis provides valuable insight into the purpose of Title VII protections and the significance of discrimination in one of the highest government positions. Part II of this Article provides a brief historical context of Presidents who have either expressed or implied that race or gender was a motivating factor for their Supreme Court nominations. Part III explains why Title VII does not apply to Supreme Court Justices. Part IV evaluates whether Supreme Court Justices are “hired” under Title VII. Part V looks at whether liability under the expansive employment-agency rule is applicable. Part VI examines the difficulty of identifying a harmed party. Part VII considers whether Supreme Court Justices are employees or independent contractors. Part VIII assesses whether gender could qualify as a bona fide occupational qualification. Parts IX and X likewise assess the related issues of whether customer preference or the authenticity exception are applicable. Part XI looks at the overall spirit of Title VII, which creates a heavy burden for those attempting to defend discriminatory hiring practices. Part XII analyzes whether such actions could be allowed under an affirmative action theory. Part XIII transitions away from legal implications and instead considers practical and ethical issues. Part XIV concludes by considering the legal and ethical implications of Title VII protections on other governmental positions.