Imagine a president announcing that since no Muslim has ever been appointed to the Supreme Court, he pledges to nominate the first Muslim justice. That would undoubtedly be unconstitutional since Article VI of the Constitution specifies that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” The spirit of that prohibition — coupled with the 14th and 19th amendments—would certainly seem to apply to race and gender as well. It is wrong, and perhaps unconstitutional, for a president to impose a racial or gender test for nomination to the Supreme Court. If a president were to announce that he intended to nominate only a white male, constitutional scholars would rightfully object. So, what is the difference?
