Below is my column in the Wall Street Journal on President Joe Biden’s promise almost two years ago that he would only consider a black female for the first vacancy on the Supreme Court. The column produced a significant response from commentators. However, in all of the commentary that followed the column, no one is contesting the primary point: that this type of exclusionary rule has been found unconstitutional or unlawful in schools or businesses. While there may be legitimate points of distinction with a Court appointment, there is little discussion of why we should use a threshold exclusionary rule for admission to the highest court that the Court would not allow in any admission to a school or business. It is worth discussing even if one believes that the Court membership is a type of bona fide occupational qualification or if one simply rejects the very premise of the Court’s barring such criteria in past cases. The benefit of having a diverse Court is obvious but, if we want to use an express exclusionary rule, we should be able to discuss why it is appropriate for the Court and those institutions or businesses barred in past case.
Instead, commentators suggested that I ignored that prior presidents made such preferential picks. That is not true. My point was that Biden’s pledge was entirely unnecessary since he could have stated that he wanted to appoint a black female without barring consideration of other candidates on the basis of their race or gender. It is the difference between a preferential and exclusionary process. Commentators insisted that Ronald Reagan, Donald Trump, and George H.W. Bush made the same pledge. That is also false. While seeking to appoint women and African Americans, none of the three excluded other races or genders from consideration and had diverse short lists. Yet, even if they did, the question remains: should admission to the Court be based on an exclusionary threshold qualification that the Court has rejected as unconstitutional or unlawful for schools and businesses?
Here is the column:
The announcement of Justice Stephen Breyer’s retirement has whistled the start of that Washington blood sport known as a Supreme Court confirmation. While the filibuster-free process guarantees President Joe Biden that he has the votes to pick anyone acceptable to all Senate Democrats, this fight is different from any in history in one respect. As a candidate, Mr. Biden pledged to select the next justice first and foremost on race and sex.
“I’m looking forward to making sure there’s a black woman on the Supreme Court, to make sure we, in fact, get every representation,” he said in a South Carolina debate. This reportedly helped win him the key endorsement of Rep. Jim Clyburn, the House majority whip.
With the court set to rule on racial preferences in college admissions, it raises the question of whether it is appropriate for a politician to use a criterion that the court itself has found unconstitutional for public educational institutions and unlawful for businesses.
It also means Mr. Biden’s short list will be much shorter than usual. The three leading candidates are Justice Leondra Krueger of the California Supreme Court, U.S. Circuit Judge Ketanji Brown Jackson and U.S. District Judge Michelle Childs. These are all worthy candidates who could have been considered for any vacancy without declaring that they were qualified by virtue of filling a quota—an unfortunate implication for the ultimate nominee.Mr. Biden could have learned something from the universities now defending their admissions policies in Students for Fair Admissions v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina. For decades, universities have avoided the type of outright quota the court held unconstitutional in Regents of the University of California v. Bakke (1978). “Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake,” Justice Lewis Powell wrote. “This the Constitution forbids.”
In the following years, the court struck down some racial preferences in college admissions, but others survived such scrutiny by relying on “diversity” rationales, in which race was a factor but not the dominant one. While critics have argued that these universities evaded Bakke and later cases, the stated rationale of preserving a “critical mass” of diversity has made it difficult for challengers to allege racial discrimination.
In 2003 the justices considered two different University of Michigan admissions programs. In Grutter v. Bollinger, they upheld one that evaluated applicants based on individual merit, then used race as a “plus factor.” In Gratz v. Bollinger, they rejected one that applied individual considerations after a “threshold” use of race. (Justice Breyer voted with the majority in both cases.) Mr. Biden, by contrast, promised not only to take account of race (and sex) before all other criteria, but to exclude all male or nonblack nominees regardless of their credentials. Similar uses of race—including prioritizing black farmers for pandemic relief—have prompted courts to strike down Biden administration programs as raw racial discrimination.
Mr. Biden’s use of such threshold exclusions is neither unlawful nor judicially reviewable. Yet it’s also unnecessary. Mr. Biden could have selected a black woman for the court while maintaining, as universities do, that he would consider all possible candidates on the totality of their records. He wanted to go beyond other candidates and expressly pledge to apply what is by definition a discriminatory threshold criterion. It was a pledge meant to blunt criticism from other Democrats, including Sen. Kamala Harris, that he had opposed school busing and affirmative action early in his career. In 1975, for example, Sen. Biden declared “I do not buy the concept, popular in the ’60s, which said, ‘We have suppressed the black man for 300 years and the white man is now far ahead in the race for everything our society offers. In order to even the score, we must now give the black man a head start, or even hold the white man back, to even the race.’ ”
Mr. Biden is now going to create one of the more jarring and incongruous moments in the history of the Supreme Court. This fall, in the Harvard and University of North Carolina cases, the justices will hear arguments that the use of race in admissions is unlawful discrimination. One of them will have gained her seat in part through exclusionary criteria of race and sex.
Justice Powell declared in Bakke that “preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.” By keeping his 2020 pledge, Mr. Biden will engage in discrimination for his own sake.
Mr. Turley is a law professor at George Washington University.
Reality check:
This is from a court that just refused to force the U.S. Department of Justice to declassify FISA “reasoning” from the FISC (Foreign Intelligence Surveillance Court) – not the details of any secret case, only the “reasoning” of why the Bush DOJ participated in alleged war crimes. Only Sotomayer and Gorsuch dissented on this case.
American voters can’t self-govern with secret laws. The whole premise of written laws is that the laws are overt and posted so citizens can comply with them. The FISA Act created the FISC (FISA court) in response to Nixon’s criminality following Watergate. The purpose is to protect Americans not government agencies. This is the one & only legal path for any president to follow.
We have bigger issues, like the faux-FISA court, than trying to make the system fairer and better represent us. Maybe America needs to stop committing war crimes first?
How can Americans discern any truth in these discussions?
America’s “Lincolnesque Life Sentence” should have been overturned long ago – Prohibition was overturned and repealed in only thirteen years.
The law in 1863 required citizens to be “…free white person(s)….”
Freed black slaves must have been immediately and compassionately repatriated upon the issuance of the Emancipation Proclamation.
Case closed; problem solved, legally.
Exactly which laws shall Americans observe now?
The answer is in the lesson taught by Abraham Lincoln: Obey the laws you like – Seize power, eliminate your opponents by martial law, violent repression and brute military force, and violate the laws you don’t like.
Imagine, if only Lincoln had obeyed the law.
George, I don’t want to upset you, but one of the original thirteen colonies permitted women to vote when it became a state.
“EACH STATE”
Each state shall decide the “manner”, including providing or denying candidacy and the entitlement to vote, of elections.
______________________________________________________________________________________________
Article 2, Section 1
Clause 1
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:
Clause 2
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
Clause 4
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
George, I agree “each state…”. I wanted to make sure you knew that in one state women were originally permitted to vote. It’s an interesting story. The state was New Jersey.
New Jersey allowed women to vote, but then it repealed the law allowing them to vote. It didn’t last long. They had to own property and be the head of the household (widowed).
How long isn’t long? It lasted a good number of years into the next century. I mentioned this history once or twice before.
However, I’m not sure how you came up with “They had to own property and be the head of the household (widowed).” I mentioned that before, but that had to do with colonial voting in certain areas. I can’t be sure, but I don’t think you are correct about the circumstances that permitted women to vote in NJ. I think they had the same right as men.
When the NJ Constitution was written, enemy troops were on the way, and they forgot to limit the vote to men. I’m going from memory so that I could be wrong. I think you are just repeating what was told to you earlier.
As someone said to Lin, you don’t have that much knowledge. You pick things off the net, but it is mostly superficial.
Hello S. Meyer: Please be careful to clarify that the person who said it to me was referring to a THIRD person, NOT me!!! That “someone” was referring to “Anonymous,” who had challenged a comment of mine. I want people to trust when I say something!
Lin, I don’t know what comment you are referring to. This mini-thread has to do with NJ permitting women to vote from the beginning. What are you referring to?
Hi there, S. Meyer: as always, If I have time, I spend it reading the comments of only a few commenters that interest me, and you are one of them!. So I was surprised to see this: “As someone said to Lin, you don’t have that much knowledge. You pick things off the net, but it is mostly superficial.” SO I hope I am correctly stating that you were agreeing with the statistical math professor who made that comment in reference to “Anonymous.”
Several different people comment anonymously. The person who made the 8:26pm comment about NJ is a different person than the one who posted about the Ngram of “disingenuous.”
Thank you, Lin.
Yes, I agree with the professor about anonymous and have been saying virtually the same thing. He is shallow though he has something to say on occasion. That is the exception, not the rule. You ended up involved in one of my discussions with anonymous.
He likes to pretend that there are many anonymous posters from the left, but as I proved before, he posts under more than one alias and icon though suddenly the two I pointed out are no longer posting. (I wonder why 🙂 ) He also has used multiple names with the same icon, which I linked to previously. Additionally, he has pretend friends who post with identical generic alias and icon. I also showed when he would be deleted from the blog and proved it by predicting some deletions though I think I missed one time. He is tiresome.
Below, he is again trying to blame other anonymous figures for his failures. If one looks at patterns, one can see he is most of those anonymous figures he likes to blame. He tried to make it less noticeable but failed and is now dull.
He has a solution to his dilemma. He can adopt an identifiable icon and name. He did that with the green anonymous in some discussions that were on a higher level with Karen, but I don’t think he likes the idea of standing behind what he says.
FUNFACT:
Women got the vote; America got a death sentence.
The American fertility rate is in a “death spiral” at 1.6 births per woman.
What good are men’s roles for women, when the country is diluted out of existence?
America, Canada, Europe, Australia and New Zealand are vanishing and their populations are imported of non-European foreigners.
The situation is more dire than a Sophoclean tragedy on steroids.
And you appear blithe; totally oblivious.
“And you appear blithe; totally oblivious.”
In what way?
Biden’s style is boorish and awkward. By excluding consideration of other jurists based on gender-race, Biden will not be able to claim that he picked the best person for the job, a selfish error that can boomeranfg back on whomever he nominates.
That said, most important will be judicial temperament — respect for the law as written, and determination for Congress to be where the most controversial policy issues go to be settled.
There is no objectively “best person” for the job. Who is best is a matter of opinion, and Biden seems to believe that the best person for the job right now is a Black woman. For almost 180 years, nominees were exclusively white men. Did the exclusion prevent the presidents who nominated them from claiming that they were the best people for the job?
OT
2020 was stolen – President Donald J. Trump won.
http://2000mules.com/
2000 ballot-harvesting mules.
_______________________
“They delivered us a clear victory.”
– Joke Biden
Loser talk. So you oppose vote harvesting. You’re in good company. Work in your state to impose secret-ballot, and vote-in-private onto mail-in voting. Just opposing something isn’t the same as making it illegal, nor is changing the definition of “won” and “lost” to comfort a wounded ego.
The DAY, the whole DAY, and nothing but the DAY, so help you God.
A day is one 24-hour period.
The election must occur on the DAY, Tuesday.
No election can be commenced and concluded in 24 hours, on “Tuesday”, the DAY, by mail or other remote means or methods.
An election can only be secure by being accomplished in person, by certified ID, at a polling.
You don’t want a secure election because you want to cheat.
The American Founders never intended that every person vote – it is not necessary that every person vote – turnout, by design, in 1788 was 11.6%.
____________________________________________________________________________________________________________________
“the people are nothing but a great beast…
I have learned to hold popular opinion of no value.”
– Alexander Hamilton
_________________
“…exclude such persons, as are in so mean a situation, that they are esteemed to have no will of their own.”
“The true reason (says Blackstone) of requiring any qualification, with regard to property in voters, is to exclude such persons, as are in so mean a situation, that they are esteemed to have no will of their own.”
“If it were probable that every man would give his vote freely, and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote… But since that can hardly be expected, in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications, whereby, some who are suspected to have no will of their own, are excluded from voting; in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other.”
– Alexander Hamilton, The Farmer Refuted, 1775
______________________________________
Article 2, Section 1
Clause 1
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:
Clause 2
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
Clause 4
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
_______________________________________________________________________________________________________________________________________
2 U.S. Code § 7 – Time of election
The Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election, in each of the States and Territories of the United States, of Representatives and Delegates to the Congress commencing on the 3d day of January next thereafter.
In fact, on 9/19/2020, Trump had not yet even met with then-Judge Coney Barrett to interview her.
You cannot even keep up with your own lies.
This commenting system doesn’t allow edits.
Did you fail to notice the clarification “* met with her as a potential SCOTUS nominee to replace Ginsburg”?
Race and sex. Racism and sexism. Diversity (i.e. color judgment, class-based bigotry) is a dogmatic belief of the Pro-Choice religion (e.g. “ethics” in a relative frame of reference) that breeds adversity. Gender is sex-correlated attributes (e.g. sexual orientation). Diversitism is an unconstitutional philosophy and practice.
I think Biden can certainly appoint an African American woman to the Supreme Court. I think he might have a problem if he only considered African women.
Independent Bob,
Biden is only going to appoint one. He’s not claiming or stating that he’s only going to appoint black women all the time. It’s his constitutional prerogative if he wants to only appoint a black woman to replace Breyer.
It’s his constitutional prerogative if he wants to only appoint a black woman to replace Breyer.
True. But any person in the United States, except the President, would be sued. Why doesn’t the President of the United States follow the law as it is written for the entirety of the Nation.
“ True. But any person in the United States, except the President, would be sued. Why doesn’t the President of the United States follow the law as it is written for the entirety of the Nation.”
He IS following the law as written. The constitution, the supreme law of the land, doesn’t state who he can or can’t nominate based on certain criteria. There’s no law requiring the president to consider prospects either. People don’t apply for the Supreme Court. They are nominated.
“It’s the [advice and consent], stupid!”
– James Carville
_____________
Unqualified and comparatively underqualified, affirmative action nominees must be rejected upon advice and consent.
Certainly, more highly qualified candidates can be identified and produced from pools of red, brown, yellow and white citizens.
Joke Biden must be impeached for deliberate sabotage of the judicial branch and America, and for the treasonous acts of “…adhering to their Enemies, giving them Aid and Comfort.”
America’s enemies, China, Russia, North Korea, Vietnam, Cuba et al., fully support, encourage and approve of any and all acts to diminish the United States by Joke Biden.
Why isn’t there a member of the Spokane, pronounced spo-kan-ee, Tribe on the Supreme Court?
Some have even studied law at Gonzaga University…
I am less interested in a “diverse” court than one that is wise, highly competent, and seeks to respect and uphold the Constitution with integrity. A person’s skin color and chromosomes should be irrelevant.
PR, there are many potential nominees who are wise, highly competent, and would seek to respect and uphold the Constitution with integrity.
Thus, those criteria are insufficient for choosing among potential nominees. Do you believe that any experiences in life are relevant? For example, the Court has several former prosecutors. Would it help the Court’s deliberations to also have a former public defender who is wise, highly competent, and seeks to respect and uphold the Constitution with integrity?
Thus, those criteria are insufficient for choosing among potential nominees. Do you believe that any experiences in life are relevant? For example, the Court has several former prosecutors. Would it help the Court’s deliberations to also have a former public defender who is wise,
Excluding entire classes of people is now OK, maybe we need to exclude anyone that has taken more than a semester of Law
An alternative, a lawyer that has a second, career in a field unrelated to law.
A person that has earned a living in animal nutrition, but also had passed the bar. An electrical engineer, with a law degree. That would show an understanding of life. something these elite judges have not had to do for a long time.
Prairie Rose is a good faith discussant. You are not.
You say “Excluding entire classes of people is now OK,” when entire classes of people have always been excluded. For almost 180 years, people of color and women were excluded. In Trump’s term, anyone not approved by the Federalist Society was excluded.
You cut off the end of the second question because you cannot deal with the actual question honestly.
(respectfully, this comment is kind of like swiss cheese, isn’t it? Is it possible for you to consider how many non-white, non-male candidates were available to choose from during those years? As someone else mentioned, it was essentially white, male Justices who eventually changed that unfortunate reality, rather than protect their own.
Yes, it’s absolutely possible for me “to consider how many non-white, non-male candidates were available to choose from during those years.” The answer is: more than zero.
I find your concurrence that “it was essentially white, male Justices who eventually changed that unfortunate reality” baffling, as it requires you to ignore all of the people other than white, male Justices whose efforts and choices were central to changing that reality. In mathematics, it’s fairly common to assess whether given conditions are necessary and/or sufficient for a conclusion. Were the rulings of the white, male Justices you allude to necessary? sufficient? both? neither? Though they played a role, I’m inclined to say neither. (My opinion.)
Ah, the “Anonymous” mathematics expert! In Brown v. Bd of Education, an all white, male SCOTUS paved the way for the advancement of African-Americans through racial integration in education (overruling its own Plessy’s “separate but equal” doctrine). To use your poorly-constructed “mathematical” analogy, the “conclusion” was the Court decision. The “necessary, sufficient” conditions included important arguments presented by counsel before the Court, -to wit, none other than African-American Thurgood Marshall, Esq., who successfully invoked Justice Harlan’s “color-blind” principle into his arguments, and would later himself become a member of SCOTUS. No one can deny the important and pivotal role that Marshall played in that decision, as well as others.
lin,
Yet again, you’ve chosent to comment about me rather than the topic. No, I’m definitely not an expert in math. I’ve worked with several exceptional mathematicians, so admittedly my standards for mathematical expertise are quite high. Still, I have a much stronger math background than the average American (admittedly a low bar), and it influences my thinking.
Prairie Rose made a comment about the composition of the court, and I responded with a comment about potential nominees. I’ve continued discussing the court’s composition and potential nominees in my responses (e.g., my claim that “for almost 180 years, people of color and women were excluded” from consideration for nominations to SCOTUS). I interpreted your response that “it was essentially white, male Justices who eventually changed that unfortunate reality” in that context — assuming that you were arguing that white, male Justices are the ones who essentially changed either the composition of the court or the set of potential nominees (the “unfortunate reality” that “for almost 180 years, people of color and women were excluded” from consideration for nominations to SCOTUS). I disagree that the acts of white, male Justices were either necessary or sufficient to change the composition of the court or the set of potential nominees. Presidents before LBJ could have nominated qualified people other than white males. Presidents before Reagan could have nominated qualified women.
Re: your claim “To use your poorly-constructed ‘mathematical’ analogy, the ‘conclusion’ was the Court decision,” no, in my response to you, the conclusion is NOT a Court decision. Again: all along, I’ve been discussing the court’s composition and the set of potential nominees. The ruling in Brown v Board of Ed did not determine the nominees for any President. Sounds like you didn’t understand my comment, and perhaps I misinterpreted what “unfortunate reality” you were referring to.
Anonymous,
“Would it help the Court’s deliberations to also have a former public defender who is wise, highly competent, and seeks to respect and uphold the Constitution with integrity?”
Cicero lauded those who defend as the model for the highest ideals. Perhaps a former public defendant would defend the Constitution particularly assiduously.
This criterion still falls within my parameters.
Are you hoping to be nominated? 😉
Anonymous,
“Do you believe that any experiences in life are relevant?”
The experiences in life that are relevant should be those that are balancing to one’s conceptions of freedom, fairness, justice, the individual and the community, privacy, the intellectual life and one of hard, physical labor, poetic and artistic thought balanced against scientific and mathematical thought, the spiritual and the secular. These are outside the narrow criteria of color and chromosomes.
“Do you believe that any experiences in life are relevant?”
No, no I do not. The only relevant job qualification are intimate knowledge of the Constitution, the grammar and usage of the English Language at the time of the Constitution’s writing, and knowledge of period relevant other writings such as the Federalist Papers to give insight into the thinking behind why the Constitution shays what it does. Nothing else is even close to being a job qualification
Currentsitguy,
Those are fair and extremely important considerations. Excellent point.
Biden didn’t invent any exclusionary rule, he stated what he was going to do. The “rule” doesn’t apply to anyone else, and no doubt he’ll never do it again despite high qualifications of a secont Black woman. Until Sandra Day O’Connor, the rule was appoint only white men which was utilized without fail for almost 200 years. After Thurgood Marshall, there was a slot for one Black man and Bush replaced Marshall with Thomas. Had a different justice died, there would have been a different result. Trump replaced Ginsburg with another woman, ever wary of keeping the balance. Don’t talk to me about his short list because they were provided to him by the Heritage Foundation. How about the “rule” promising to outsource the appointment to an outside partisan party? Like any good lawyer, Turley is able to shape a legal argument out of anything though he has no foundation. His “exclusionary rule” is frankly full of it,
Enigma,
I agree. Turley seems intent on justifying by false equivalency Biden’s choice. He insists Biden abide by expected norms as everyone else does. Ironically that was not expected of Trump. Especially when it came to immunity from prosecution or indictment.
Oh, for pity’s sake. There were no “rules,” per se. The President nominates, the Senate confirms. Apart from anything else, the women confirmed have proven themselves no better than the men they “replaced.”
Professor Turley, I thank you for expanding your viewpoint on this subject.
Biden’s exclusion of Asians, Caucasians, males, etc., makes one wonder about the left’s commitment to equality under the law. I find it difficult to believe that a President of the US would make such a statement when he could easily have made the appointment without appearing to exclude any group.
Loving America, I choose not to believe this act constitutional (though there is nothing one can do).
In his Gatestone commentary, Alan Dershowitz brings forth Article VI of the Constitution and the 14th and 19th Amendments tying them together with an argument indicating this is possibly unconstitutional. Of course, there would be no certainty, one way or the other, but an answer from the Supreme Court wouldn’t change anything. Biden’s first choice would end, and he would have the ability to choose the same person again, choosing without ‘exclusivity’.
The only proper solution is for Biden to make a statement that notes exclusion is not part of the American way and then appoint the Justice he prefers, explaining she is his choice of many.
S. Meyer, citing the 14th amendment is irrelevant. One amendment doesn’t supersede another. The constitution gives the president sole discretion on who he can nominate for whatever reason. Even Turley acknowledges this. Turley is just upset about the backlash over his shoddy attempt at equivalency by stating it is unconstitutional for schools and businesses to discriminate based on race and gender.
Biden doesn’t have to explain himself.
Good thing Mr. Biden doesn’t have to explain himself. That’s never been his strong suit, and never more so than now.
Smile of the day.
Svelaz, it is not irrelevant. It shows the mindset of good people, which seems to exclude people wearing your stripes. The 14th would be only one part of a larger argument. Quoting myself from above, “is possibly unconstitutional. Of course, there would be no certainty, one way or the other, but an answer from the Supreme Court wouldn’t change anything. Biden’s first choice would end, and he would have the ability to choose the same person again, choosing without ‘exclusivity’.”
“Even Turley acknowledges this. ”
What do you mean by “even”? Turley’s voice carries significant weight. However, even he doesn’t pretend to know for sure the outcome of an argument before the Supreme Court. It can only be one’s opinion until that happens, but you have never understood the difference between opinion and fact.
“Biden doesn’t have to explain himself.”
Of course, that statement is correct because race-baiters like yourself are in power, and nothing will change who he can appoint. The only change that can be made is cosmetic.
Anonymous (S. Meyer),
“ What do you mean by “even”?
Turley, the guy who you say has a significant voice stated that what Biden did is NOT illegal of subject to judicial review.
“ Of course, that statement is correct because race-baiters like yourself are in power, and nothing will change who he can appoint. The only change that can be made is cosmetic.”
That’s not race baiting. This is the bigger problem which conservatives and republicans. They have no idea what racism is except when it’s so blatantly clear that nobody would dispute it.
Trump did the same thing when he chose ACB. He literally stated he would chose a woman. Was he being sexist because he didn’t consider males too?
The 14 th amendment is completely irrelevant. One amendment does not supersede another.
“Trump did the same thing when he chose ACB.”
Trump was noted as focusing on ACB long before she was appointed and discussed her with others. He didn’t exclude men or different races as Biden did.
When you say, “Even Turley acknowledges this.”, it sounds like disparagement of Turley, which wouldn’t be mentioned except that it seems to be your habit. Your intellect is too thin to deal with.
“The 14 th amendment is completely irrelevant.”
It isn’t irrelevant. Dershowitz explained the reasoning, but that probably went over your head. I’ll repeat my thoughts on the matter.
“In his Gatestone commentary, Alan Dershowitz brings forth Article VI of the Constitution and the 14th and 19th Amendments tying them together with an argument indicating this is possibly unconstitutional. Of course, there would be no certainty, one way or the other, but an answer from the Supreme Court wouldn’t change anything. Biden’s first choice would end, and he would have the ability to choose the same person again, choosing without ‘exclusivity’.”
Anonymous (S. Meyer),
“ When you say, “Even Turley acknowledges this.”, it sounds like disparagement of Turley, which wouldn’t be mentioned except that it seems to be your habit. Your intellect is too thin to deal with.”
When I say “even Turley acknowledges this” it means exactly what it means. That Turley is fully aware that nothin Biden is doing is illegal or unconstitutional or subject to judicial review. It’s pointing out exactly what he said.
“ It isn’t irrelevant. Dershowitz explained the reasoning, but that probably went over your head. I’ll repeat my thoughts on the matter.”
It is completely irrelevant. Because Dershowitz’s argument is trying to contort a rationale that Biden’s stating his choice as he did is as you say “possibly unconstitutional”. It’s either constitutional or not. Dershowitz’s argument like Turley’s is significantly flawed. One constitutional amendment does not supersede another. That’s what these two constitutional scholars are doing a whole lot of mental gymnastics and pretzel logic to justify what is already a badly flawed argument.
“When I say “even Turley acknowledges this” it means exactly what it means. ”
Right, in just the same fashion, you misread NY and FDA documents.
“It’s either constitutional or not. ”
There you go again. One can only have an opinion. One cannot predict what the Supreme Court would say. As I explained above, it’s a moot point, but I see it is difficult for you to get the written word from your eyes over to your gray matter.
I understand there happen to be some reasonable (Liberal) female black candidates under consideration. If Biden chooses one of them, I think it will be relatively easy-going, and she will be voted in. Then she will be tainted for the rest of her career—pure Biden stupidity.
Beginning September 2020, Trump had 44 potential nominees on his lis; 12 were women. Barrett had been on Trump’s short list since 2018. As this 2019 Axios article reports, Trump wanted Barrett to replace Ginsburg.
https://www.axios.com/supreme-court-trump-judge-amy-barrett-ruth-bader-ginsburg-11d25276-a92e-4094-8958-eb2d197707c8.html
No surprise then he would announce his nominee would be a woman. He already knew which woman it would be.
If “He already knew which woman it would be,” then why did he say on September 22, 2020, “I would say that I’m very close to making it a decision in my own mind.” Was he lying about not yet having made a final decision in his own mind?
Was he lying about not yet having made a final decision in his own mind?
🤣 Don’t you know? It’s Trump, he spoke, so according to Leftists, he was lying.
I didn’t ask leftists, I asked you. I guess you can’t bring yourself to give your own opinion about whether he was lying.
Also, plenty of people on the left say that Trump lies a lot and other times he tells the truth, even saying the quiet part out loud. Of course, you prefer to caricature.
50 vote ‘Yay’ in approval of the discriminatory act, 50 vote ‘Nay’ in disfavour of the discriminatory act. Is no tie breaker vote. Is no hurry, can wait till after the 2022 election cycle to complete . . .
The Supreme Court is not like some business. Nor is Congress. Nor is the President. I voted for Obama because he was half white. I want a black U.D.Senater from my state. I’ll ask Clyborne who to promote.
I want our next President to have several ethnic ancestors. Black, American Indian, Asian, White, and not a New Yorkie.
Candidate Joe Biden was easily manipulated by Jim Clyburn.
President Joe Biden has never stopped being manipulated to this day, by his ‘handlers.’ We know who some of his handlers are, but we do not know all of them. We should.
If you’re white and not rich, you have to go to the back of the bus in NY for covid therapies. Ironic, since many blacks are reluctant to take the vaccine. The Left is clinically insane.
Diogenes:
Even if “blacks are[n’t] reluctant to take the vaccine,’ the Left is still clinically insane. 😀
True, sir 🙂
In achieving his goal of appointing a woman to the court, Reagan gave us Sandra day O’Conner, who was both inoffensive and inconsequential. To stick the label “token” on someone in 2022 shows that Joe Biden has learned absolutely nothing in his 50 years on the public dole.
Turley is essentially trying to justify a really, really bad comparison regarding discrimination and the law. He’s a constitutional scholar, clearly he knows this. What he is wanting to do is be able to criticize president Biden for something that any president can do and as noted Trump did it too.
Refuting Turley’s problem is simple. Schools and businesses don’t nominate Supreme Court justices. They don’t hire Supreme Court justices. Nobody applies for the position of Supreme Court justice. As Turley himself clearly noted. Congress made laws against discrimination against schools and businesses. Presidential appointments like immunity from indictment or prosecution are unique to the president.
Turley wants to have it both ways and did a shoddy job in trying to justify it. He’s just plain wrong.
Come on, Sevvy. Even you must be willing to admit that having a racial and gender criteria for any job is discriminatory in the main and pandering at the margins. A little intellectual integrity helps — not hurts — your argument.
Good response, Mespo
Mespo, there’s a distinction between discrimination based on race and gender and choosing what you want.
Discrimination for a job is determining racial or gender only because that person believes one is one is superior to all the others. If Biden stated he wanted a black woman because black women are superior or better at making decisions then that would be discriminatory. But just choosing a black woman because he believes a black woman is due on the court is not. It’s his prerogative to make that choice and exclude other choices.
Sevvy:
Here let’s make it simple: If someone before even having the power to hire someone says that they will only hire a person with a specific set of immutable characteristics that society deems discrimnatory, is that person a bigot by definition?
To help you along and through the irrelevancy that sometimes clouds your mind, if Trump did that with ACB then yes he is a bigot in that instance.
Mespo, your strawman argument is irrelevant. That “someone” is not being distinguished in being the president vs. just anyone else. The president has by constitutional authority to nominate anyone for any reason he wants. He’s not considering people who applied for the position like everyone else who is.
Schools and businesses are dealing with applicants not nominees. There are laws against discrimination against applicants.
The constitution grants the president the authority to choose whoever he wants even if he just wants to appoint one particular type of person.
If the black woman he wants tp choose is qualified why is it an issue?
Any trace of intellectual integrity in any post by Sevvy would be a unique occurrence…..hopefully one day we might actual see some…..shortly after that Purple Unicorn spewing up Pink Pixie Dust shows up.
Svelaz: Once again — you completely miss the point. You are nothing if not consistent.
Giocon1,
“ Svelaz: Once again — you completely miss the point. You are nothing if not consistent.”
No, it’s conservatives and republicans criticizing Biden because he made a statement that is not discriminatory or illegal. In trying to label Biden as a racist because they can’t make a distinction between real racism and a choice they are fruitlessly trying to justify a flawed reasoning that Turley himself made.
Conservatives and republicans are complaining that Biden is ONLY choosing a black woman and not a QUALIFIED black woman. It’s the critics who are portraying his choice as a “token” appointment simply because he stated he only wanted to nominate a black woman. Nobody is mentioning that they are qualified. It’s conservatives and republicans making all the fuss about race and gender.
Are the choices Biden has qualified or not?
Biden’s a racist and misandrist – like many Dims throughout the years. However, today they just don the virtue cloak to deflect righteous indignation. What he — and they –do is obviously wrong, unprincipled and ultimately corrupting of everything good. Damn them all! And we will in November.
Look, when you’ve lost Lefty (but honest) Bill Maher, you’ve lost:
It doesn’t matter. The problem is that his appointee will be a doctrinaire statist – in the mold of Sotomayer
Statism – ideas so good that they’re mandatory
Have you studied the unlikely progress Lee Kuan Yew pulled off in Singapore in one generation? Good policy sometimes takes proof that it works before a consensus is reached. And time is not to be squandered.
“there is little discussion of why we should use a threshold exclusionary rule for admission to the highest court that the Court would not allow in any admission to a school or business. ”
It doesn’t need a lot of legal discussion.
Congress has passed laws regulating schools and businesses.
Court nominations made by the President are only regulated by the Constitution, and the Constitution places no restrictions on such an exclusionary rule — not only that, but all Presidents used such an exclusionary rule for almost 180 years, nominating only white men.
I don’t think you’re a stupid person Turley. You know all of this. Which is why you later admit “Mr. Biden’s use of such threshold exclusions is neither unlawful nor judicially reviewable.”
“Commentators insisted that Ronald Reagan, Donald Trump, and George H.W. Bush made the same pledge. That is also false.”
It’s true for Trump. Ruth Bader Ginsburg died on September 18, 2020. On September 19, 2020, Trump said “I will be putting forth a nominee next week. It will be a woman.” You try to make excuses, but it’s true that he made this pledge about Ginsburg’s replacement.
I seem to recall Justice Barrett was not the first Justice nominated by President Trump….and also recall that his List of Potential Nominees had been published prior to his Election and included all sorts of people without any stated exclusion by Race, Sex, or Ethnicity.
WONDERFUL comment
“ I seem to recall Justice Barrett was not the first Justice nominated by President Trump….and also recall that his List of Potential Nominees had been published prior to his Election and included all sorts of people without any stated exclusion by Race, Sex, or Ethnicity.”
There was a particular exclusion, that none be liberal.
The nominees all had to be originalists of conservative. And picked by the federalist society.
“I’m saving her for Ginsburg,” Trump said of Barrett,
“I will be putting forth a nominee next week. It will be a woman.” You try to make excuses, but it’s true that he made this pledge about Ginsburg’s replacement.”
********************************
That was wrong — like your logic. To say “I will nominate a woman” is certainly pandering but it doesn’t exclude the possibility that he looked at other candidates of the penile persuasion and arrived on a woman as the best. Amy Coney Barrett is cxertainly qualified. Or does the itsy-bitsy mysoginist in you think that is impossible?
That was not “a pledge” – it was a statement of fact. He had already identified a nominee, from a very diverse list that he presented earlier.
He hadn’t even interviewed Coney Barrett when he made his 9/19/2020 statement that “It will be a woman.”
According to Trump himself, he had not yet decided what woman he would nominate when he made his 9/19 statement. As he noted in September 22, 2020, “I would say that I’m very close to making it a decision in my own mind.” Was he lying?
On 9/19, he hadn’t yet decided which woman he was going to nominate; he’d only decided THAT the nominee would be a woman.
“On 9/19, he hadn’t yet decided which woman he was going to nominate; he’d only decided THAT the nominee would be a woman.”
***********************
With swami powers like this (or fly on the wall status in the Oval Office) I goota ask, do you do parties?
You think someone needs swami powers to read Trump’s public statement on 9/22/2020 that he hadn’t yet made a final decision?
Was he lying when he said on 9/22 that “I would say that I’m very close to making it a decision in my own mind”? Had he, in fact, already made a final decision in his own mind when he said that?
Yes, she’s qualified. I expect Biden’s nominee to be qualified to.
But that’s irrelevant to the fact that Trump stated on 9/22 that he had not yet made a final decision about who he was going to nominate yet pledged on 9/19 that his nominee would be a woman.
* qualified too
Ah, an “Anonymous” expert! First, Justice Ginsburg’s pending demise was sadly well-known, and I would surmise that she (or her spokesperson) had already apprised the Court IN PRIVATE of how seriously imminent it was. I would suggest that YOU have no idea who comprised the pool of candidates that were ALREADY being reviewed, considered, and narrowed down in the event of such an untoward death. I further assume that Trump, as well, had already narrowed down his choices and perhaps decided on one, ready to go. I assume this because he announced that he would be nominating a person “next week.” Second, and importantly, what are you suggesting is the purpose of adding a black woman to the Court, -other than optics????? If the Constitution is “color-blind,” as Justice Harlan famously stated, then color should make zero difference. The Constitution and rule of law apply equally to all of us, and personally, I think the Court has done a pretty good job ensuring such. Are you suggesting that a predominantly-white Court (although “diverse” in religion and ethnicity) are going to render decisions that are more favorable to whites???? What is the “black” perspective that would be added to the Court’s decisions???? Third, it would be difficult to disagree that Biden is more concerned about creating a legacy in his name (to save the reputation of his asinine personality and presidency) than he is about “diversity.” (p.s., I have many black friends and colleagues.)
(sorry for the grammatical error, should read: “…that a predominantly-white Court IS going to render…
My goodness, so many assumptions.
Lin, as you know, unfortunately Harlan was writing in dissent when he said the constitution is colour blind. The court has never held this. In fact, it has for decades and decades countenanced preferential policies based on race both under the Constitution and under the Civil Rights Act of 1964, despite the explicit language in the latter to the contrary.
Even if it rules decisively against this in the two university admissions cases, the academic and corporate establishments will find ways to evade the rulings to continue their policies. For example, the state university system of California is in the process of eliminating standardised tests as part of the admissions process, and this will reduce the prospects that future racial preferences can be proved. The ideology that blames systemic racism for socioeconomic disparities and that relies on racial preferences as the solution is very deeply embedded among decision makers in our culture today. A sea change in judicial practice as well as aggressive enforcement of the new dispensation by Federal authorities across the board will be necessary to root it out.
Hello Daniel: Just reading all comments now. Your thoughts are always stimulating, but let me add a few. I may be wrong, but wasn’t it future-SCOTUS Justice Thurgood Marshall who invoked Harlan’s “color-blind” statement when arguing before SCOTUS in Brown v. Bd. Of Education- to his ultimate success? ( I might be confusing cases.) And later in the 1990s the Court knocked down racial gerrymandering, basically employing the same principle that the government (here, local governments) could not classify citizens by race, etc.
But, more to your point, and since you seem to read books more than I, in Andrew Kull’s “The Color-Blind Constitution,” he argues that color-blindness was a rhetorical theme (like your previous commentary about rhetorical devices) for many years, -until it was replaced with advocacy for more corrective/remedial “compensatory racial preferences.” In other words (my inference), color-blindness applies-except to correct race-based bigotry or discrimination. Of course,the latter exception being subsequently abused (in my opinion),-with attempted tempering by judicial intervention, “the academic and corporate establishments [nonetheless] will find ways to evade the rulings to continue their policies,” as you wisely conclude.
Trump didn’t say that he only considered woman. He had identified a nominee. It was a woman. Simple statement of fact.
What has happened to intellectual honesty in these discussions? Oh – that’s right,. It’s social media. What matters is scoring debating points, not intellectual anything.
No, on September 19, 2020, when Trump said “I will be putting forth a nominee next week. It will be a woman,” he had not yet identified who he was going to nominate. In fact, on 9/19/2020, Trump had not yet even met with then-Judge Coney Barrett to interview her.
* met with her as a potential SCOTUS nominee to replace Ginsburg.
In a July 2018 Politico article:
Trump nonetheless helped stoke anticipation by interviewing a trio of other contenders, Judges Raymond Kethledge; Amy Coney Barrett, a favorite among anti-abortion groups; and Thomas Hardiman, the runner-up to Trump’s first pick for the high court, Neil Gorsuch, another Kennedy clerk.
Trump hit it off with Hardiman, aides said, and he views Barrett as a solid contender should he get a third Supreme Court nomination.
https://www.politico.com/story/2018/07/09/brett-kavanaugh-trump-private-meeting-706137
Time for you to move the goalposts again.
Yet I haven’t.
Saying that someone is a “solid contender” does not imply that he’d made a final decision.
Promising to nominate a woman is a far cry from limiting consideration to an African-American woman. That’s the difference between selecting among roughly 40% of the U.S. population and 6%.
My point was that Turley’s claim about Trump was false.
As for your point, no President picks nominees at random. We’re not talking about 40% versus 6%. We’re talking about much, much less than 1% in both cases. Trump’s entire list of potential nominees included less than a dozen women. I don’t think Biden has presented a public list, but I expect that that his private list includes approximately the same number of women as Trump’s list.
“Trump’s entire list of potential nominees included less than a dozen women.”
Yet, 33% of his Supreme Court selections were women and he didn’t exclude men from the decision. Biden excluded men and all races except blacks.