Suppose a President has the opportunity to nominate a Supreme Court justice. The hypothetical President is a racist, sexist whatever and decides to make their nomination accordingly. In other words, the President will gladly pass up a qualified person who is not of the President's preferred race/sex/etc. to nominate someone who is. Is this legal?

  • 1
    Why are you framing the question in such an odd way? Why not just ask directly about the situation that's in the news right now? Jan 27, 2022 at 18:43
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    @MichaelSeifert to keep the question removed from current events.
    – moonman239
    Jan 27, 2022 at 19:25
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    I can understand the impulse, but the current phrasing comes across as being asked in bad faith, as though you're trying to lay some sort of trap in a political debate. (This may be the reason for the downvotes, though I wasn't one of them.) I assume that was not your intention, though. Jan 27, 2022 at 19:40
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    This question is nonsense and not because it is disingenuous. It is nonsense because no individual has a right to be nominated to the Supreme Court. The president can pick any one of the 330 million people in the US or for that matter the 7 (8?) billion people on the planet. If the Senate thinks they are not qualified, they can vote not to confirm. There is no one white man who is owed the nomination and no one Black woman or Latinx NB either. Every time someone is nominated, there are dozens or hundreds of qualified people who were passed over.
    – Damila
    Jan 28, 2022 at 1:13
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    This was done for easily 200 years
    – Tiger Guy
    Jan 28, 2022 at 15:39

2 Answers 2


There is no legal process whereby a demand can be made that POTUS nominate or consider a specific individual for some appointment such as a court position. There can be no law prescribing how such nominations come about, other than The Constitution which says that POTUS

shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law

Congress does not have the power to pass laws limiting how POTUS makes nominations, therefore whatever POTUS wants to do in this respect is a non-justiciable matter.

  • Can you also address how nomination/hiring like this seemingly discriminates on the basis of race and sex (and thereby seemingly violates Civil Rights Act of 1964)?
    – bobuhito
    Jan 27, 2022 at 22:40
  • @bobuhito: The Civil Rights Act of 1965 doesn't say the federal government can't discriminate against protected classes. Its anti-discrimination statutes apply to these entities: state governments; public schools; public accommodations (private organizations like storefronts, theaters, etc.); private-sector employers that meet a certain criteria; and municipal governments.
    – moonman239
    Jan 28, 2022 at 0:22
  • @user6726: In other words, the only things that stop a President from acting on their own biases is: a Senate that is unwilling to go through with the nomination (perhaps one that sees the nomination as biased), and backlash from the public, maybe even impeachment & removal from office (if the President need not be accused of doing something illegal to be removed by the Congress)
    – moonman239
    Jan 28, 2022 at 0:31
  • @moonman239, yes, exactly
    – user6726
    Jan 28, 2022 at 1:08
  • @moonman239: The original 1964 Civil Rights Act didn't forbid employment discrimination by the federal government, but it was amended by the Equal Employment Opportunity Act of 1972 to add such a provision, now at 42 USC 2000e-16. However, it applies to a specific list of employment types that is broad but not universal, and doesn't include judges. Jan 28, 2022 at 15:58

The president can nominate anyone they chose. They do not even need to be a lawyer and there certainly is no objective criteria or list of qualifications that could be used for a calibrated comparison between potential nominees, so there can be no concept of “passing up” one person over another.

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