Below is my column in The Hill newspaper on former Vice President Joe Biden’s pledge that he will select a black women as the next nominee to the Supreme Court.
Here is the column:
In his debate with Bernie Sanders, Joe Biden made two pledges to voters and asked his opponent to do the same to nominate only a black woman for the next open Supreme Court seat and to choose a woman as his vice president. Even with identity politics, the pledge to impose a gender and race requirement for the next Supreme Court nominee is as ironic as it is troubling. What Biden was declaring, and what Sanders wisely avoided, would effectively constitute discrimination in admission to the Supreme Court. Indeed, the Supreme Court has declared that such race or gender conditions are strictly unconstitutional for admission to public colleges.
The pledges that Biden has made amount to this. No matter how qualified men or, in the case of the Supreme Court, women who are not black may be, he will not consider them as candidates. In the case of vice president, such gender discrimination would be allowed, as presidential candidates can select a running mate on any grounds and voters can decide if they approve. Justices, however, are lifetime appointees, and presidents have always been careful to state that, while they seek diversity among their nominees, they would appoint the most qualified person regardless of race, religion, gender, or sexual orientation. But in a single declaration, Biden quickly dispensed with even the pretense of equal consideration.
Imposing an absolute requirement that a nominee be a particular gender and race is effectively an affirmative action pledge. It is precisely what the Supreme Court already declared to be unconstitutional discrimination. In the 1977 case of Regents of the University of California versus Allan Bakke, the Supreme Court found quota and affirmative action admissions policies based on race to be unconstitutional. While the justices were fractured on the logic, a clear plurality on the bench supported the view that preferring “members of any one group for no reason other than race or ethnic origin is discrimination for its own sake,” adding “this the Constitution forbids.”
The Supreme Court handed down decisions over the next 20 years that struck down admissions policies that directly or indirectly used race as a critical element. It continued to allow race and gender to be used as part of an overall effort to promote diversity so long as it was not the emphasis or overriding criteria. That is precisely the position of past presidents, and Sanders, in saying that they want greater diversity without declaring that men or those who are not black will not be considered, as Biden pledges.
In the 1977 case, the Supreme Court rejected claims that discrimination in favor of a minority is not really discrimination at all. The Supreme Court declared that “the clock of our liberties, however, cannot be turned back to 1868” and “it is far too late” to embrace any discrimination for “special wards” or groups. This is more damaging when a discriminatory policy is used to select members of the highest court responsible for protecting us from discrimination. Biden is promising to shape the Supreme Court with conditions that it has previously declared forbidden by the Constitution.
His policy would also dramatically reduce the pool of potential nominees since fewer than 230 African Americans have served on the federal courts, and the majority are men. The number is greater on state courts, however, presidents have preferred picking justices from federal courts. Even if one branches outside the judiciary for a nominee, the pool is a fraction of the nondiscriminatory population traditionally considered by past presidents.
Biden has taken the position that he will not consider any candidate who is a man or a woman who is white, Asian, Hispanic, or other minority that is not black, no matter how qualified. He would not consider a nominee like Ruth Bader Ginsburg because of the color of her skin. He would not consider Thurgood Marshall because of his gender. Louis Brandeis and Oliver Wendell Holmes would be two-time losers under this policy. Indeed, this is just ironic for those four members of the Supreme Court who have voted consistently to uphold admissions policies based on race. Now their own bench could be the subject of a threshold selection not based on merit.
Particularly disappointing is what this policy says about the way in which Biden views the most important criteria for justices. The Supreme Court has always been treated as the place for the best legal minds who stand objectively above their peers in intellect and abilities. I have been critical of the past failures to nominate such leaders. There is no doubt here that identity politics played a role in some nominations, but presidents have at least maintained an appearance of their selections based purely on merit.
Biden now also belittles those minority jurists who can compete for the Supreme Court without an assurance that no whites or other women will be considered. In the name of diversity, Biden embraces discrimination. The Supreme Court denounced such rationalizations as harming minority groups, concluding that they would “only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth.”
If this is the new norm, then we should expect further affirmative action in demanding seats for other identity groups or powerful voting blocs. What makes this worrisome is that we have seen other troubling pledges during the Democratic primaries in recent years, including the use of litmus tests for Supreme Court nominees. As Biden himself previously proclaimed, “A litmus test on abortion relates to a fundamental value in the Constitution.”
But there are many such fundamental values, and litmus tests have long been denounced by judges, bar associations, and Congress as inimical to the independence of the judiciary. Democrats supported the “Ginsburg Rule” to refuse to testify on any cases or issues that might come before a justice. But Biden and others are now pledging to make such promises a condition of any nomination. All this suggests an alarming future for the Supreme Court, yet the response from the media has been crickets. After all, there can be only one nemesis to judicial integrity, and that position is already filled now by the current occupant of 1600 Pennsylvania Avenue.
The Supreme Court rejected an admissions policy that would simply give an enhancement score for “underrepresented minorities” in its decision in the 2003 case of Jennifer Gratz versus Lee Bollinger. The majority noted that “individualized review is only provided after” the group is designated for special consideration. In this instance, however, Biden would go even further and designate the group for exclusive consideration in his policy.
Sandra Day O’Connor voted in favor of an admissions policy that allowed race to be one of many criteria in the 2003 case. She emphasized that the majority expected that “25 years from now the use of racial preferences will no longer be necessary to further the interest approved today.” The policy that Biden has taken goes far beyond that case and, if he used it, would come around the time when O’Connor foresaw the end of racial preferences in admissions. It would turn out that, roughly 25 years later, the Supreme Court would actually witness, not an end to race or gender preferences in admissions, but the application of such criteria for itself.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.
Where’s Warren when you need her?
Warren: “Well, I’M going to have a justice that a young, disabled, undocumented, trans, with special needs currently in prison, person interviews on my behalf, and only if this person believes that our justice nominee is absolutely committed to ruling in a way that’s fair for everyone will that person actually be nominated.”
Audience: – stunned silence –
Warren: “You like that?”
Audience: – sustained silence –
Warren: “Let’s do that!”
Pure Racism but then Biden is not a real Citizen anyway.
Who nominated Clarence Thomas? He happened to be in a bar exam course in St. Louis back in 1974 which I was involved in back in Missouri. He was a new assistant attorney general for Missouri that year. I think Danforth was the AG then. Clarence was interesting to speak with then. I think he replaced Truegood. Y’all know who he was don’t ya?
LBJ put Truegood on the Bench not only because he was a Black person. But because he was the most successful lawyer for civil rights cases designed and pushed to end Jim Crow.
America truly benefited from LBJ’s various efforts for ending Jim Crow. The Civil Rights Act of 1964 and the Voting Rights Act of 1965 are two huge moves forward. I am all the way with LBJ.
JT
You didn’t get the memo? Identity politics are perfectly acceptable when done by leftists fighting discrimination. In fact, it is acceptable for everyone to have an positive self identity, except for Whites.
antonio
I had a professor who insisted on a couple things on critique days –
– no names on paintings
– every student had to tack up her/his work before he entered the room
That was to ensure he could critique everyone’s work as fairly as possible.
Same principle applies here – quality of product over any other consideration.
If I was the president, I’d insist on seeing qualifications and only qualifications. After choosing the best of the lot, I’d ask, so who is this person? If there were a number of applicants that were in all ways equal – and I bet that’s more common than people might think – I believe there’s most definitely a place for addressing under-representation.
If I was the president, I’d insist on seeing qualifications and only qualifications.
Experience as a trial judge and as an appellate judge is to be preferred. More to be preferred is evidence in writing that the aspirant understands the role of judicial review in a democratic system, and the integrity to keep to that role.
And understands the common law.
December seventh 1941, is a day which will live in Infamy.
–FDR.
Roosevelt rounded up Japanese humans. Many were American citizens. And he put them in concentration camps during WWII.
Some Germans raised this as a parallel kind of defense when charged at the Nuremberg trials for rounding up Gypsies and Jews.
Uh oh. Stacey Abrams has a law degree.
Sandra Day O’Connor voted in favor of an admissions policy that allowed race to be one of many criteria in the 2003 case. She emphasized that the majority expected that “25 years from now the use of racial preferences will no longer be necessary to further the interest approved today.”
Higher ed apparatchiks respond to these strictures with try-every-door noncompliance. Favors given black applicants are so systematic they’re obvious in the descriptive statistics. The only way you stop this situation is to dissolve campus admissions offices and have mechanistic admissions rules implemented by the state comptroller.
The SCOTUS killed merit and now regret it. They should be held accountable for unleashing favoritism on society, They are the sole problem in this regard. Nobody wants to hire or appoint an inferior person just because he/she meets a quota checklist.
Not the sole problem. The judiciary, the public interest bar, the higher ed apparat, corporate hr, elected officials, and miscellaneous public agencies all working toward this end. Some elected officials and the broader public opposed.
TIA:
“The judiciary, the public interest bar, the higher ed apparat, corporate hr, elected officials, and miscellaneous public agencies all working toward this end.”
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But they all get screeched to a stop at the gate unless the SCOTUS swings it open. This stuff would never pass legislatively but once it gets judicial imprimatur, its impossible to resist it.
The movie Blazing Saddles has two quotes relevant to American history and the topic of discrimination. One of them won’t be repeated here. It begins with da word: Where.
The second one is when the mayor of the town said he would admit the migrating ex slaves into town to also help stave off an Indian attack. But the said: “But Not The Irish!”
This isn’t a particularly smart move by Biden. He already has the vast majority of black voters supporting him, so he doesn’t need to pander to them. But with this announcement, he has alienated the majority of everyone else.
He’s not pandering to them. He’s pandering to gentry liberals – the sort of twit employed as a higher ed apparatchik. It’s painless for Biden and he lures a few votes away from Bernie.
This is a prime example of pandering.
“He already has the vast majority of black voters supporting him, so he doesn’t need to pander to them.”
I don’t think that’s quite right.
Yes, the Democrat party still retains the majority of black voters, but whether they’ll all actually cast a vote for the party, or for him, is the question. Also, it’s not the support of the majority of that demographic he needs to worry about. It’s the growing number in the minority of that demographic. And this blatant attempt at pandering does not help his case with them – rather it bolsters their numbers, and further erodes that majority you mentioned.
Can I just say how awesome it is we’re talking about the Trump reign in the past tense?
Sure, the GOP would never appoint someone based on – cough, cough Clarence, cough, Thomas, cough – race, and it’s only a coincidence that except for twice in the last 40 years (including Thomas) they’ve all been white men – just like their party.
Bush nominated a Hispanic who had his guts ripped by the Democrats and never made it to the Court.
Sure, the GOP would never appoint someone based on – cough, cough Clarence, cough, Thomas, cough – race,
Your complaint about Thomas performance in office is just what? And you’re comparing Thomas to whom?
He was promoted from the DC Circuit, which has been a common pool for Supreme Court nominees. He hadn’t been an appellate judge long, but he had been an adjudicator in his capacity as chairman of the Equal Employment Opportunity Commission.
The point, of course, was to locate someone who (1) could be confirmed and (2) would not generate travesties while on the court.
1. Thomas replaced Thurgood Marshall. Marshall was a lousy judge and in his last years on the Court, a triumph of the taxidermist’s art. His preparation for the Court was a run of years as Solicitor-General and a run of years on the 2d circuit, six years in toto. His predecessor was Tom Clark, who’d been Attorney-General but had no history on the bench. His was Frank Murphy, a politician who had also been Attorney-General but never sat on the bench.
2. The preceding appointment was David Souter, no one to write home about. He’d been an appellate judge for about 12 years, about 90% of that in one state with a population the size of metropolitan Pittsburgh. Souter’s predecessor was Wm. Brennan, also a lousy judge, whose preparation consisted of 5 years as an appellate judge in New Jersey. His was Sherman Minton, who had served eight years on the 7th circuit but whose appointment to the Supreme Court was criticised by The Times among others as an example of Truman cronyism, given his years in Congress prior to 1941.
3. Anthony Kennedy had about 13 years as a federal appellate judge. His predecessor was Lewis Powell, who had no history on the bench. Powell was preceded by Hugo Black, a member of Congress whose time on the bench had consisted of a brief run of years as a JP.
4. Antonin Scalia had, like Thomas, been promoted from the DC circuit. He occupied the seat which had been held by Wm Rehnquist, consequent to Rehnquists elevation to Chief Justice. Rehnquist, ‘ere he was appointed to the Court, had no history on the bench at all. His predecessor was John Marshall Harlan II, whose preparation consisted of 13 months on the 2d circuit. (Thomas had 19 months on the DC circuit). His predecessor was Robert Jackson, who had a two year stint as Solicitor General but had never served on the bench anywhere.
5. Sandra Day O’Connor, she of the five-part balancing tests, had about 6 years and change on the Arizona bench, of which she spent 21 months as an appellate judge. She succeeded Potter Stewart, whose preparation was 4 years and change as a federal appellate judge. He succeeded Harold Burton, who had no history on the bench. His predecessor was Owen Roberts, who had no history on the bench.
6. John Paul Stevens preparation consisted of five years as a federal appellate judge. His predecessor was Wm. O Douglas, whose preparation consisted of two years chairing a regulatory commission. See Mary Ann Glendon on Douglas atrocious reputation among the law faculties of the 1950s.
7. The preceding appointment went to Harry Blackmun. Blackmun proved to be a lousy judge. He had, ‘ere his appointment, spent 11 years on a federal appellate court. His three immediate predecessors – the seedy Abe Fortas, Arthur Goldberg, and Felix Frankfurter, are notable for never having served on the bench prior to their appointment.
8. The preceding appointment was that of Warren Burger. Burger himself had put in 13 years as a federal appellate judge. His predecessor was Earl Warren, a California pol who had never served on the bench. His predecessor was Fred Vinson, a Kentucky pol who had, however, sat for six years on the DC circuit.
You never seem to get tired of being a Dunning-Kruger exemplar.
Marshal was of course the lead counsel for the NAACP for many years and argued major cases about segregation before the SC, including Brown vs Board of Education.
Thomas had been on the DC Circuit court for 16 months, having been appointed to that seat also by Bush, his first ventriloquist.
Marshal was of course the lead counsel for the NAACP for many years and argued major cases about segregation before the SC, including Brown vs Board of Education.
So what? He was still hardly lucid and protected by his clerks.
Thomas had been on the DC Circuit court for 16 months
And you wouldn’t object, if he were not Thomas. And this is perfectly plain.
So every caucasian male that’s been a justice was ONLY chosen because of his sex and race?
The simmering Bigotry of the Democrat party has never changed. They have always maintained that the only thing that matters about an individual is that person’s race – and now sex – that presently the greatest accomplishment a human being can attain is being born a non-white female in the Democrat party. Nothing. Else. Matters – only the power they derive from, and the control they have over, their convenient, expendable tools.
em, if one’s race is a suspect cause of black appointments, how is not for whites?
See. There it is.
I don’t see the world through a racist, sexist lens.
I don’t look at Clarence Thomas and think, he’s only there because…
I don’t look at Ginsburg, Sotomayor, or Kagan and think, they’re only there because…
You have to be groomed into seeing the world that way, and that, thankfully is something that I escaped.
and how did we end up in a place with not one single WASP on the court! amazing
unless you count Gorsuch I guess but he’s a cradle Catholic now Episcopalian.
so practically speaking, now all Catholics and Jews. And they say it’s a Protestant nation– and culturally it surely is. I have heard Catholics say that various Protestant sects are judaizing trends mixed with ecclesiastical heresies, but that’s probably more difficult to explain than worth trying to do
especially since nobody likes hearing that, not protestants, not Jews, and not most Catholics, either. but, i try at least once a day to offend everyone!
i found an entry in jewish encyclopedia for “judaizers” as a phenom as related to Orthodox Christianity. Ghost of St John Chrysostom talking?
https://yivoencyclopedia.org/article.aspx/Judaizers
“… race, and it’s only a coincidence that except for twice in the last 40 years (including Thomas) they’ve all been white men – just like their party.”
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So you don’t like white males? You oughta tell that to these folks. They didn’t know is was just for white folks:
https://en.wikipedia.org/wiki/List_of_African-American_Republicans
In one sentence, he complains about a black appointee to the court and then complains about all the white appointees to the court. You have to feel for his family getting stuck with such a borderline case.
Being a white male, I assure you I have nothing against them. I do have a problem with a major political party in modern day America pretending they are the non-racists when somehow their membership and political representation and appointments are all as white as Lawrence Welk.
Being a white male, I assure you I have nothing against them.
Actually, you’re a self-aggrandizing twit who fancies you’re in a position to issue indulgences to yourself.
pretending they are the non-racists when somehow their membership and political representation and appointments are all as white as Lawrence Welk.
They didn’t teach you logic anywhere in school. (Or you know perfectly well this is BS).
Still, just for the record: what people advocate is manifest in the semantic content of their utterances, not in their ascribed traits. And whether an idea is good or bad is going to be established by discursive reasoning and empirical investigation, not by the ascribed traits of the people who adhere to it. (Whether people belong to a particular collectivity is established by ascribed traits, but that’s a different matter entirely). An idea is not good or bad contingent on who adheres to it.
One thing we know, is that the term ‘racist’ is, of course, a rhetorical thrust. It has little content, and people of integrity make little use of the term.
racist is an overused and vague insult and little more. it elicits a pavlovian response from people who are conditioned to react to it in a conditioned manner. likewise, sexist, homophobic, etc.
these labels are losing their cachet
Stormy Daniels would have been Biden’s pick if only she were black.
Affirmative action makes selection despite qualifications, or the lack of them, and it is like dry rot and termites in a home.
Sooner or later the home falls.
Biden would make it sooner.
I think Judge Traci Hunter would be a good pick for him:
https://www.youtube.com/watch?v=ECajTxlIk8M
Squeeky Fromm
Girl Reporter
Well, she won’t leave the courtroom without a fight!
The impeached President and Moscow Mitch have made it clear only white men are to be on the court, but when Biden said he would put a person of color on the court, all hell breaks loose with the right-wing.
I wonder when the DNC is going to kick you out of your dirty little cubicle so you can’t spend your days trolling with nomsense.
Put Michelle Obama up there and watch her, literally, kick Barty O’K’s butt.
Michele graduated from law school in mid-1988. Her law license has been on inactive status since 1991. Justice Kavanaugh will no doubt be thoroughly intimidated by Michele’s whopping three-year legal career! 🤣
You’ve uttered inanities under both of your sock puppets, Gainesville. Maybe this is not your subject.
Does Gainesville have a subject of expertise that doesn’t require a building permit?
What up, Mess. Just speculating, humorously, from the cheap seats, as all these responses here are. If what you thought on this subject had any bearing whatsoever you wouldn’t be huffing it up on a blog.
As far as this mythical Gainesville character and related field of expertise, who knows?
i myself have several fields of expertise and every minute spent listening to much of the drivel on this board makes me realize how fortunate I’ve been to travel those fields.
Ha.
To further clarify the point…
It’s immediately evident by your taking what I said about Michelle Obama that any expertise on this particular subject is wildly lacking.
It’s all good though, there’s room for you no doubt in whatever worlds you frequent.
Clearly not yours either as taking my joking speculation seriously would attest.
How about we just get the best person and leave the colors to Crayola.
There we go. Now you’re talking.
“The pledges that Biden has made amount to this. No matter how qualified men or, in the case of the Supreme Court, women who are not black may be, he will not consider them as candidates.”
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I’m glad Biden and the Dim establishment came out as the racists they so clearly have become. Truth in advertising you know.
1) Biden has to win and 2) I think he will forget by then.
@Paul Schulte
Forget he is President?!
Yeah, he might.