Gail Collins and Bret Stephens: Nothing’s More Fun Than Picking the Next Supreme Court Justice. Right?

From a New York Times conversation between Gail Collins and Bret Stephens headlined “Nothing’s More Fun Than Picking the Next Supreme Court Justice. Right?”:

Bret: Gail, President Biden has announced that he will nominate a Black woman to replace Justice Stephen Breyer. Is this a good idea, politically speaking?

Gail: Bret, let me rise above that and say it’s a good idea, national-welfare speaking. The Supreme Court has so much power — more in some ways than any other body in government. And obviously you want it to reflect the makeup of the country.

Bret: So why not, say, an Asian American jurist?

Gail: We’ve only had two Black justices, and five women, in American history. There’s a lot of territory to make up for.

Obviously this can’t be the end of the inclusion story. Also obviously, you can’t ignore the fact that Biden really did need to rally Black voters. Not much danger of losing them to the Republicans, but the enthusiasm/turnout factor is important.

And an Asian American justice would be great. Any time.

Bret: Just so you know, if I were a senator, I would vote to confirm any qualified nominee, on the general principle that a president deserves deference on judicial appointments. That’s why I supported Barack Obama’s nominations of Elena Kagan and Sonia Sotomayor, even though I don’t agree with them much.

Gail: Well, seems to me they worked out fine.

Bret: But Biden’s decision to make race and gender his paramount criteria bothers me, even if you can say he’s fulfilling a campaign promise. I suspect it bothers a lot of people who would be delighted to see a Black woman on the court, but not because she’s a Black woman. The standard should be the best legal mind, period, not to create a court that better resembles our overall demographic makeup.

Gail: We’ve learned over decades and decades of struggle that in this great country there’s almost always more than one qualified candidate for any top job, Supreme Court included. But we need to watch the selection process to make sure the folks in charge aren’t always just picking the qualified people they’re most comfortable with. If we hadn’t gotten past that, we never would have gotten past a table full of white guys for everything.

Bret: A fair point, but I just don’t buy it. Louis Brandeis deserved a seat on the court because he was the greatest progressive legal mind of his day, not because he was Jewish. Ditto for Thurgood Marshall as the greatest civil-rights litigator of his time and Ruth Bader Ginsburg as the great champion of gender equality. The fact that each of them was so intellectually gifted did a lot more to diminish prejudices than the mere fact of their identities. My fear is that Biden’s decision to make race and gender his top criteria adds to the politically toxic perception that the Democratic Party has become captured by a “race essentialist” ideology, as the liberal political scientist Ruy Teixeira calls it.

Gail: As a Democrat, I want to belong to a political party that knows how to win while embracing inclusion. However, as usual when it comes to our current president, I admit that the messaging has been clumsy….

Speaking of this administration, we’ve been getting a lot of pushback from your call for Biden to replace Ron Klain with someone new as White House chief of staff. With someone like Tom Daschle, the former Senate majority leader …

Bret: Or maybe Claire McCaskill of Missouri or Heidi Heitkamp of North Dakota, both of them former senators with excellent political skills and a good feel for the way in which decisions made in the Beltway play in flyover country U.S.A.

Also, in complete and utter contradiction to what I was just saying, I think it would be great to have a woman in the chief of staff role. There have been 30 White House chiefs of staff, going back to John Steelman in the Truman administration, and every single one of them has been a white guy. With further apologies to Klain, who really is smart and decent, why is he standing in the way of the social progress his administration otherwise claims to champion? Why not put the “quit” into “e-quit-y,” as someone once said?

Gail: Bret! No fair messing with my head. Wait until the weather’s better.

But I do want to take this opportunity to note that Tom Daschle himself wrote me to say that while he was “appreciative” of your mention, he thought Klain was perfect for the job — “I have never known a more organized, intelligent or committed individual.”

Bret: In my experience, that’s the sort of thing people in Washington say while they wait for someone else to stick the knife in. But I’m sure the former majority leader was being totally sincere….

Gail: Are you shocked and dismayed by the way the congressional districts are being gerrymandered? It’s not as if urban issues aren’t already ignored by a Senate that gives Wyoming as many votes as New York.

Bret: I had thought that the partisan gerrymanders would give Republicans a big advantage. But it turns out that Democrats are doing just fine, thanks to their own gerrymanders in places like Maryland. Maybe the courts would do a better job of drawing new districts, but the Supreme Court already ruled that gerrymanders fall outside its jurisdiction, so it would probably take a constitutional amendment to change things, and that’s never going to happen in our lifetimes.

Gail: Won’t ever argue with you that Democrats don’t try to gerrymander to their own advantage. It’s a bipartisan vice. I could, however, argue that by the very nature of their constituencies, the Republicans tend to gerrymander much more in a way that hurts minorities.

But I won’t. Just to be collegial.

Bret: You’ve made me smile. On the whole, though, I’m pretty despondent about the state of things in general. Somewhere between a presidency that seems adrift, a stock market that feels like it’s on the verge of a crash, a country in which half the population is in a permanent state of incandescent fury at the other half and a world that’s holding its breath waiting for Vladimir Putin to bite off a slice of Ukraine the way another revanchist European dictator once took a slice of Czechoslovakia, I’m beginning to get a sense of what the world might have felt like in the 1920s or ’30s. Even the possibility of Tom Brady’s retirement feels … deflating.

Please tell me I’m wrong and that I need to chill.

Gail: I concede that this isn’t the greatest time in the nation’s history, but it’s far from the worst, either. For all our faults, we’ve come a long, long way in racial healing over the last century. In my own life I got to witness an absolute transformation of the status and opportunities for women. As the father of daughters, you have to get some hope from that.

Bret: Very true.

Gail: And as a faithful fan of the Cincinnati Bengals, I absolutely guarantee that the public world can survive very nicely without Tom Brady. Chill in peace.

Gail Collins is an Op-Ed columnist and a former member of the editorial board, and was the first woman to serve as the Times editorial page editor, from 2001 to 2007.

Bret Stephens has been an Opinion columnist with The Times since April 2017. He won a Pulitzer Prize for commentary at The Wall Street Journal in 2013 and was previously editor in chief of The Jerusalem Post.

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