Confirmation Bias: The Fighting Has Already Begun and Biden Hasn’t Even Named a Nominee

Below is my column the the Hill on the early controversies over President Joe Biden’s first nomination for the Supreme Court. Call it confirmation bias but the fighting has already begun before any nominee is even named.  President Biden triggered a debate over the use of racial and gender criteria to limit consideration to black female candidates. Notably, a new ABC poll shows 76 percent of Americans oppose such an exclusionary process. While supported by Democratic senators, Sen. Susan Collins (R., Maine) has objected to the rule as has others in Congress.  In addition, Sen. Mazie Hirono (D., Hawaii) has made controversial comments over her desire to have the next nominee rely not just on the law but the nominee’s life experiences to reach the right result in court cases.

Here is the column:

The late Sen. Ted Kennedy (D-Mass.) once said that “Supreme Court nominations are an occasion to pause and reflect on the values that make our nation strong.” As a new confirmation process is about to begin, Kennedy’s words could guide us, if only we could agree on what those values are.

Confirmations often are a reflection of our political divisions and even our rage. Even with that history, the confirmation fight over replacing Justice Stephen Breyer sets a new and ominous record: The controversy began before Breyer announced his resignation, before anyone was nominated by President Biden. We seem to have reached the ultimate political stage of development where we no longer even need a nominee for our confirmation fights.

The controversy over this nomination actually began roughly two years before the vacancy was announced. In March 2019, Biden said during a Democratic primary debate that he would only consider black females for the next Supreme Court vacancy. It was a promise elicited by Rep. James Clyburn (D-S.C.) during a break in the debate; Clyburn then gave Biden his critical endorsement before the key South Carolina primary. The judge Clyburn supports is now on Biden’s short list.

The pledge not to consider other candidates based on their race and gender raised immediate concerns. This week, with Justice Breyer standing beside him, President Biden affirmed that he would exclude anyone who is not black or female. He would, in other words, not even consider Breyer himself, or even the late Justice Thurgood Marshall, because they are the wrong race or gender.

In making his pledge, Biden created a glaring contradiction for the court. He is using a threshold exclusion based on race and gender that the court has repeatedly declared either unconstitutional or unlawful for schools and businesses to use in their own admissions or hirings. There is a difference between a preferential and an exclusionary rule in selection. That contradiction will be magnified this term after the court accepted two cases that may further curtail — or even bar — the use of racial preferences in college admissions. Indeed, the new justice will hear arguments on the discriminatory use of such criteria after being initially selected not in a preferential rule, but an actual exclusionary rule based on race and gender.

In response to that observation, a host of commentators insisted that Presidents Reagan, Trump and George H.W. Bush made the same pledge. That is false. While seeking to appoint women and African Americans, none of the three excluded other races or genders from consideration, and they had diverse short lists. Notably, however, no commentators actually denied that Biden was using a test for admission to the court that the High Court itself would not allow for universities or businesses. Even if not unlawful, there is a legitimate question of whether a threshold test considered unconstitutional for schools should be used for the court that is tasked with barring such tests.

After applauding Biden for excluding candidates on the basis of race and gender (including Asian Americans and Hawaiians), Sen. Mazie Hirono (D-Hawaii) went on MSNBC to emphasize one other important credential: a willingness to go beyond what the law says, in order to do what is right.

Hirono told MSNBC’s Ari Melber that she is looking for “someone who will consider the impact, the effects of whatever decision-making is on people in our country so that they are not making decisions just based on — which I would like them to base it on law, which would be nice, and precedent, and who are not eagerly trying to get rid of decades of precedent that would protect a woman’s right to choose, for example, and voting rights, et cetera. But I’d like a justice who also will take into consideration the real-life impact of the decisions he or she will be making.”

If you unravel that statement, you find a striking (and, frankly honest) statement that Hirono wants someone who will not be just another justice “making decisions just based on … law” but who “will take into consideration the real-life impact of the decisions he or she will be making.”

Hirono has often been criticized for inflammatory statements during confirmations, as well as her support for court-packing. During the Brett Kavanaugh confirmation, Hirono strongly implied — more than once — that the nominee was not entitled to a presumption of innocence and that men should “just shut up.”

While endlessly controversial, Hirono may be one of the more honest members of the Senate. Most of her colleagues adopt euphemistic or obscure terms to convey such notions without taking ownership of the real implications. Many, for example, embraced Justice Sonia Sotomayor‘s statement that a “wise Latina” might very well reach a better conclusion in a case than a white man. Notably, that statement was made in opposition to the famous statement of Justice Sandra Day O’Connor that she did not view herself as a female jurist, that — on a legal issue — a wise old man and a wise old woman would reach the same conclusion.

There is no question that life experiences shape our perspectives and values. However, O’Connor was emphasizing that citizens rely on justices to rule on what the law means, not what they want the law to mean. If it is constitutional, what the law means should not depend on the “impacts” you favor or disfavor. The danger of identity politics shaping constitutional interpretations is precisely what O’Connor sought to rebut. The meaning of the Clean Air Act or the Commerce Clause should not depend on an individual justice’s life experiences. Likewise, the fact that a justice is a Jew, a Christian or an atheist should not shape their interpretation of the Constitution’s religion clauses.

Of course, the relevance of one’s life experiences depends greatly on one’s ideological bent. For example, while liberal lawmakers and many in the media celebrated the background of Justice Sotomayor as “inspiring,” they largely ignored the incredible life story of Clarence Thomas. While Sotomayor spent time in public housing with a single mother, Thomas grew up speaking Gullah, a Creole dialect, and his home was a one-room shack with dirt floors and no plumbing; he grew up without a father, who left him at age two. Thomas, the second African American to sit on the court, did not make the cut of “Great African Americans” featured by the Smithsonian’s African American Museum — but his accuser during his Senate confirmation hearing, Anita Hill, did.

The life experience of Justice Amy Coney Barrett also was not a positive factor in her confirmation. Ibram X. Kendi, an influential liberal race theorist, compared Barrett’s adoption of two Haitian children to being a “white colonizer” and suggested that she is using them as “props.” Hirono has been criticized for targeting judicial nominees’ deep Catholic beliefs and amplified her opposition to Barrett by voting “Hell, no” on the Senate floor. (Hirono is now calling on GOP colleagues to “keep an open mind” with Biden’s nominee.)

After the Kavanaugh bloodletting, this is not an auspicious beginning.

However, this nominee will not be a transformative pick in terms of the likely outcomes of the court. Breyer will be replaced by a someone selected as a reliable vote on the left of the court; thus, the nominee will not change the court’s balance.

The question is whether this confirmation will change how future nominees are selected.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.

80 thoughts on “Confirmation Bias: The Fighting Has Already Begun and Biden Hasn’t Even Named a Nominee”

  1. Prof. Turley mischaracterizes the backgrounds of Sandra Sotomayor and Clarence Thomas. Her mother was a nurse and she was raised in subsidized housing designed for the working-class. Her father died when she was nine, but her mother was nonetheless able to afford to send her and her brother (who is now a physician) to Catholic elementary and high schools. Her socio-economic status was thus solidly middle-class. As for Clarence Thomas, his own mother was poor, but he was raised by his grandfather who had a fuel delivery company and he also had the benefit of a private, Catholic education. According to several books I’ve read, most inhabitants of his hometown considered his grandfather to be upper-middle class. I don’t know why it’s necessary to try to create the impression that either of these two overcame some tragically deprived childhoods. It’s simply false. It suggests that they are obvious affirmative action beneficiaries, who must therefore be portrayed as modern-day Horacio Algers in order to “deserve” the preferential treatment. (Except that Horacio Alger didn’t receive affirmative action, lol.) The same is true of Biden’s reputed front-runner, Ketanji Brown Jackson. Her father is an attorney and mother a school principal. She attended Harvard and Harvard Law. Her socio-economic background places her among America’s elite class. The best tragic-life scenario that anyone has been able to dredge up is that she had an uncle who was a cocaine addict. Sorry, but none of these folks are in any way are representative of the America. All you have here is a bag of Skittles filled with elites and you pick a different color. They all come from the same social classes, attended the same elite colleges and law schools, and were taught by the same professors. They have far more in common with one another than they do with the average American who works for a living. The only fight here is over political philosophies. The fake sob-stories of childhood deprivation and up-by-the-bootstraps heroism are insulting to people who really have overcome significant personal obstacles.

  2. President Joe Biden openly admitted he would discriminate based on race and gender.

    Of course good people are upset about that.

    1. Karen,

      Trump openly admitted he would discriminate based on sex.

      On September 22, 2020, Trump stated “I would say that I’m very close to making it a decision in my own mind” about who he was going to nominate to replace Ginsburg. However, on September 19, 2020, Trump said “I will be putting forth a nominee next week. It will be a woman.” Thus, Trump committed to nominating a woman BEFORE he decided who he was going to nominate. In fact, on 9/19, Trump had not yet even reinterviewed then-Judge Coney Barrett to assess her as a possible replacement for Ginsburg.

      I don’t recall you condemning Trump for that.

  3. Get rid of party system. Go to Coalition system without parties except maybe a curious remnant all those problems disappear and we continue with Constitutional Centrist Coalition MINUS the forbidden by our oath of office anything to do with socialism. Instead we recognize we are a Constitutional Republic operating under market capitalism AND a conscious social conscience of each of it’s self governing citizens banded together in a coalition. Why keep kicking a USELESS CAN?

  4. At no point did the selection of Coney Barret include the verbiage of anything implying ‘white woman’, and the left attempted to tear her to shreds and destroy her life. This poll is a mild protestation by comparison, and one that apparently most of us are on board with. The dems need to be dismantled, and yesterday. These people have crossed the Rubicon of problematic into wildly insane, and we need to stop it. In this modern era we have the benefit of history, and the tumultuous era of the 30s and 40s need not repeat itself if we take responsibility and act accordingly. The Dem party decided to capitulate to young and radical voters, who are a minority in number and no kind of future for society, and to corporations that are also motivated by greed and relevance, and it needs to be brought in line, right now. We do still have the power to vote. Vote in opposition to the modern Progressive agenda in such numbers that it is irrelevant whether or not they ‘cheat’.

    1. James, Barrett literally held the title ‘Handmaiden’ in her dubious offshoot of the Catholic church. The public should be wary oof nominees from nutty religious groups.

  5. Dennis says:

    “As you did in Trump’s impeachment you need to meet with all the GOP Senators and try to convince them that no Black woman should be confirmed.”

    That’s not fair. I have no doubt that Turley is not against a black female justice. I’m sure he will praise her nomination. He is objecting to the manner in which Biden went about it.
    As I have said, Biden said the quiet part out loud in stating his intention that he was going to nominate a black women. Turley is simply arguing that he should have kept up the PRETENSE of not excluding anyone before nominating his pre-determined candidate.

    1. Turley is simply arguing that he should have kept up the PRETENSE of not excluding anyone

      If you were 1/10 as smart as you think you are, you wouldn’t be forced to lie all the time. Turley made no such statement.

    2. Meanwhile, Turley is silent about Trump saying the quiet part out loud yesterday in his complaint that he wanted Pence “to change the results of the election” and “Unfortunately, he didn’t exercise that power, he could have overturned the Election!”

      It is NOT unfortunate that Pence obeyed his oath of office and refused to do what Trump was pressuring him to do. Trump admits here that he lost, but he wanted Pence to overturn the Electoral College vote. This is how democracies die.

      Chris Krebs (former CISA Director) yesterday: “In the last 24 hrs the former president has: (1) floated pardons for 1/6 defendants, (2) encouraged civil unrest if he’s indicted in GA/NY, (3) once again confirmed he pressured Pence to overturn a lawful election.”

      Will JT have the courage to call Trump out on this? I doubt it, but I’d be happy to be surprised.

      1. Anonymous says:

        “Will JT have the courage to call Trump out on this? I doubt it, but I’d be happy to be surprised.”

        I would be ecstatic were he to do so, but I’m not holding my breath. I expect more crickets….

  6. “I’d like a justice who also will take into consideration the real-life impact of the decisions he or she will be making.”

    Translated:

    Screw the Constitution.

    A justice should obey the voices of the mob. (Why, yes. Thank you for asking. I am one of those voices.)

  7. Jonathan: This column and the ones before re: Biden’s pick for the SC are like the guy who keeps throwing garbage at a wall hoping something will stick. Nothing new in this column,, nothing original–not even a legal argument against Biden’ pick. As you have admitted, there is no “judiciable” argument against Biden choosing a Black woman. All of the candidates on Biden’s short list are apparently well qualified. Now that Lindsey Graham has come out in support of Michelle Childs it appears your arguments are falling on deaf ears. But ever the propogandist you are following Joseph Goebbels admonition that “if you repeat a lie over and over again people will begin to believe it”. So dissembling is your fall back position. As you did in Trump’s impeachment you need to meet with all the GOP Senators and try to convince them that no Black woman should be confirmed. Since there is no filibuster to fall back on you are going to have a tough sell!

    1. No, your pseudo-condescending insults and redundancy (that you keep throwing against the wall is) what others see.. And I don’t hide behind “Anonymous” posts. Thanks, but no thanks.

      1. And by the way, the word is “justiciable.” not “judiciable.” That tells me a little bit more of your pretentious condescension.

      2. Lin, he isn’t wrong here. Turley keeps insinuating that what Biden did was unconstitutional discrimination while at the same time admitting it’s not illegal or subject to judicial review. What Dennis posted is legitimate criticism of Turley’s flawed argument.

        Clearly Turley is trying to conflate two standards by using a false equivalency.

        1. Turley keeps insinuating that what Biden did was unconstitutional discrimination
          Turley never said any such thing. There is no legal or constitutional remedy to the Presidents plenary power in appointments.

          But exactly who other than the President could say they are seeking to appoint….._____ …and they were excluding All males, and all people not Black?

          1. Well, there you go buddy! You were able to say in two short paragraphs what many others are apparently unable to grasp from the professor’s blog. So they instead twist what he said, or reword it, or attach a meaning he did not imply, or eliminate his qualifying statements that flesh it out.Thank you Iowan2

            1. Lin,

              Nobody it is twisting anything. Turley has made it quite clear what he means.

              Turley is indeed implying that Biden’s statement about only choosing a black women for the SC is unconstitutional.

              He’s playing a false equivalency argument while admitting at the same time what Biden said or is choosing to do is not illegal or subject to judicial review.

              It’s such a sloppy argument that he has had to write three different columns trying to justify it without success. All he is doing is feeding the “rage” he complains about. Biden’s critics are citing Turley’s claims to justify criticism that Biden is being racist and unconstitutional.

              1. Turley is implying nothing. He is stating fact. You, are inferring things he as never said. His statement is 100% correct. Schools and businesses would run up against 14th amendment protections if they made the same statement. That’s a fact. But NO ONE has claimed the President of the United States has any such limits executing his plenary powers.

              2. Svelaz: I really wish you guys would respond with substantive comments that we could debate. Instead, it is all pseudo-condescension (and I say pseudo, because you are not really disparaging the professor’s reputation, hard as you may try.) Here are examples of “twisting,” “rewording,” “attaching a meaning not implied,” “eliminating qualifying statements:” (Capitalization is mine, for emphasis.)
                “He’s [Turley] PLAYING a false equivalency…while ADMITTING at the same time….SLOPPY ARGUMENT…had to write three different columns TRYING TO JUSTIFY it…WITHOUT SUCCESS…and FEEDING THE RAGE..”‘
                I ask you, dear Svelaz/and counterparts: please do a grade-school outline for me: (1) which statements represent the professor “playing” a false equivalency; (2) which statements are admissions? (3) which statements reflect “trying to justify?” (4) please explain why such statements were “without success,” and (5) how are the statements “feeding the rage” more than your own insulting jabs at him? Thanking you in advance, yours truly, lin.

          2. Iowan2,

            Yes, Turley had implied that Biden stating he is only picking a black woman is unconstitutional discrimination. Everyone who is citing Turley including Fox News is making that claim.

            Turley: “ 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.”

            Turley is claiming that Biden is using an “exclusionary rule” that applies to schools or businesses to insinuate that Biden’s statement amounts to unconstitutional discrimination.

            The constitution grants the president, not businesses or schools, to choose a nominee for the SC. There are no requirements for how or who he must choose. The president is free to choose whoever he thinks it’s best and stating that he wants only a black woman is entirely his choice. He doesn’t have to justify his decision. The senate takes care of that. He can exclude everyone else if he wants to. Trump made up his mind that he would only pick a woman. It’s no different than Biden’s own choice of which criteria he would decide on.

      3. lin, Dennis posts comments under his full name. Strange for you to complain to him about anonymous comments.

        As for your claim about “pretentious condescension,” you post an awful lot of insults.

        1. TO Anonymous/Svelaz/Silberman/Dennis: My comments are directly to Dennis, in his own name. So why is Anonymous and Svelaz and Silberman responding to them? I’m sure Dennis is a big boy, he can respond to me directly…
          My goodness, all those posts are always in close succession and proximate to one another-in time and substance, in your own names, then under “Anonymous” to make it look like there are more people opposing my view than there really are! (Svelaz: this is my OPINION.) Methinks Mr. S. Meyer may be right about this… (I will make a substantive response to Svelaz) Thanks, guys.

          1. lin,

            “So why is Anonymous and Svelaz and Silberman responding to them?”

            The 11:44 and 11:50 AM comments of yours that I responded to were to Dennis, but you told him “your pseudo-condescending insults and redundancy (that you keep throwing against the wall is) what others see.. And I don’t hide behind “Anonymous” posts. Thanks, but no thanks.” I responded to point out that he wasn’t “hid[ing] behind “Anonymous” posts” (your opinion, not mine) and because you were condemning insults while posting your own insults.

            This is a blog. Anyone who wants can respond to anyone else’s comments! You have sometimes replied to comments that weren’t addressed to you, so it’s even stranger that you’re now asking why others sometimes respond to comments you’ve addressed to someone else. It occurs because that’s how comment sections work.

            1. Hi there, we are using up a lot of undeserved space unrelated to the blog’s substantive topic, when my original comments to Dennis were only one-two sentences but your separate response is dragging it out. I addressed the “Anonymous” aspect separately. I do not throw out insults, I only respond to them, like turning a mirror toward them…And Thank you for following and checking my comments (almost always, shortly after I post them, even if they are not to you). I’m flattered.Yours truly, lin.

              1. If you’d rather discuss something more substantive, I invite you to respond to my comment about Turley’s continued dishonesty re: Trump’s statement about nominating a woman prior to replace Ginsburg: https://jonathanturley.org/2022/01/31/confirmation-bias-the-fighting-has-already-begun-and-biden-hasnt-even-named-a-nominee/comment-page-2/#comment-2155253

                My opinion: It’s not a good model for law students when a professor chooses to repeat a false claim instead of correcting it.

                Or if that doesn’t interest you, there’s my OT comment re: Turley’s silence on recent Trump statements that deserve condemnation: https://jonathanturley.org/2022/01/31/confirmation-bias-the-fighting-has-already-begun-and-biden-hasnt-even-named-a-nominee/comment-page-1/#comment-2155258

                Totally up to you of course.

                As for “I do not throw out insults, I only respond to them,” do you intend that as an opinion or a factual claim? (Personally, I treat it as a T/F claim that could be investigated by looking at your use of insults.)

                1. * “nominating a woman prior to replace Ginsburg” should be “nominating a woman, prior to determining who he’d nominate to replace Ginsburg”

                2. I accept your challenge. (1)Please print (for all to see) any insult I threw out that was non-related to someone else’s insulting comments. (2) Thank you for pointing me to some other comments of yours but I ALREADY said that we were using up too much space on something not related to the substantive article. It is unfair for people to have to move past all this back-and-forth to get to some comments relating to this article. So I only addressed your comments in THIS article thread. Your response to my comment sent to your alter-ego Svelaz–which is on topic–would be appreciated. Thanking you in advance, yours truly, lin.

                  1. lin,

                    Of the two comments I referred you to, the first *is* “related to the substantive article” (specifically, it’s related to Turley’s claim that “a host of commentators insisted that Presidents Reagan, Trump and George H.W. Bush made the same pledge. That is false. While seeking to appoint women and African Americans, none of the three excluded other races or genders from consideration, and they had diverse short lists” — Turley’s claim is false with respect to Trump’s pledge to nominate a woman to replace Justice Ginsburg, as I provided evidence for in the first of my 2 comments that I referred you to).

                    I am not Svelaz, and I will leave it to Svelaz to respond to the questions you posed to him or her.

                    Some of your unprovoked insults can be read on this page:
                    https://jonathanturley.org/2022/01/28/no-george-h-w-bush-did-not-impose-a-race-qualification-in-selecting-clarence-thomas/
                    For example, “he opined you were getting all your information from others or off the internet. I agree, since you seem to be such a wonderful expert on soooo many topics. Perhaps you are a DNC plant who monitors this blog and tries to dispel certain politically-unfavorable comments.” I had not insulted you. You seem fond of sarcasm as a form of insult (my opinion), both there and when you elsewhere addressed me with “Ah, the “Anonymous” mathematics expert!”

                    1. Thanks for responding. Neither is an example of insult, and you know it: You DO constantly seek out my commentary and try to dispel it with extraneous and pretend-lofty “expert” argument, and I agree with both the professor and S Meyer on this. To help you along, the previous/above sentence is both opinion and fact, not insult. In fact, I will further suggest that virtually all your comments to me are retaliatory, as though I had scored a point somewhere along the way that you will never forgive. Turning the mirror on you (just as I said I do), my two previous comments that you just cited were in RESPONSE to your attempts to dismiss/discredit me/my comments on something so extraneous as the use of “disingenuous.” (You dragged that one on for two days)–and even longer over vaccines. -And my original comment was not even addressed to you! So just give it up. I do not want to continue this silliness. Go ahead, -I know you will want the last say….Thanks anyway, good night.

  8. Biden should put an American Indian female on the Supreme Court. Justice. Cherokee.

  9. It’s a clever trap. If the Republicans object to anything in the candidates background or previous rulings, the media will go ballistic over the “racism and sexism.” It’s only OK to be racist, sexist and openly discriminatory if you’re a Democrat.

  10. I can just see Forrest Gump on that Park Bench waiting for the Bus…..saying “And just like that….Democrats were all for Supreme Court nominations to be an occasion to pause and reflect on the values that make our nation strong.”.

  11. Hirono definitely and repeatedly confirms the classic “Better to keep quiet and be thought a fool, than speak and confirm it.” I would also suggest to her that she’s learns little to nothing when she is speaking but listening truly brings illumination. Having been in Medicine for 46 years and taught physicians and nurse practitioners, the key is always getting the trainee to shut up and listen to their patient. Probably the one of the 2 greatest physicians of the 20th Century was Michael Debakey. I was fortunate to be there at times with he interviewed patients. His total concentration was on the patient and what they had to say. Everything else was removed from consideration. In 1-2 minutes he could learn all he needed to know of the patient. The patients and most of his trainees worshipped him and the patients were always convinced that he had spent at least 15-20 minutes with them, so total was his concentration. And he was not the most benign of personalities but his focus was always where it should be. Politicians and media should maybe take the same approach with the populace of this nation. I have also had much interaction with attorneys and my perception is that the best of them listen like a very good physician.

  12. Joe Biden wouldn’t even consider Ruth Bader Ginsburg or Thurgood Marshall! Now tell us how his asinine proclamation isn’t limiting the pool of best possible jurists. It’s not Black or White or male or female, it is best to pick from 100% of possible nominees, not 6% or possible nominees. Remember, RBG and Thurgood Marshall need not apply!

    Imagine an NFL team (probably the Jets, snark) saying they will only pick a linebacker because they need help at that position and then Tom Brady is available in the draft. Think the team will say, sorry Tom, we would like a linebacker for our team so better luck next time. Yes, the Jets (the Joe Biden of the NFL) might say that, but the better teams will pick the best person available.

    1. “it is best to pick from 100% of possible nominees”

      Name even one President who has done that. The vast majority limited their consideration to white men.

      Trump limited his consideration to a couple of lists determined by other people. He certainly didn’t model what you suggest.

  13. Once again Turley is being dishonest with the issue. He’s literally feeding that “rage” he complains about. There’s a reason why his last two columns received so much criticism, because he’s pushing a false equivalency in describing president Biden’s choice to only nominate a black woman. Even Turley himself admits Biden did nothing wrong or unconstitutional. What Turley IS doing is feeding the controversy by making an obvious false and horrendously bad equivalency. He’s a constitutional scholar and he should know better. Other scholars have rightly denounced Turley’s sloppy job at trying to imply Biden’s statement as some sort of unique racist exception.

    As he often does he completely ignores his own employer’s involvement in this political fight over Biden’s yet to be chosen nominee. Fox News wasted no time when justice Breyer announced his retirement in accusing Biden’s choice as unconstitutional or racist. It was Fox News and Turley’s own dishonesty that got the ball rolling with this issue.

    This is a new low for Turley. No wonder he’s been spending so much time trying to defend an already poor argument he lost.

    1. Svelaz: “Better to keep quiet and be thought a fool, than speak and confirm it.”

      1. Giocon1, so you don’t support freedom of speech? Not surprised. Turley himself has stated Biden hasn’t done anything illegal or unconstitutional.

    2. Svelaz says:

      “Other scholars have rightly denounced Turley’s sloppy job at trying to imply Biden’s statement as some sort of unique racist exception.”

      Can you post links to that criticism?

  14. Hirono has a permanent spot on the the lists of The Democrat Intellectual Vacant, superstars. She is a great example of a person that has NEVER put any thought into the subject at hand. NEVER had to debate her beliefs. I would love to see her debate a highschool Jr. that has done a little self study on the Federalists Papers. Hirono would leave in a huff after 5 minutes.

  15. 2022 is the 35th anniversary of the despicable Senate confirmation process of Robert Bork. Since then, the D’s have savaged Thomas, Kavanaugh, and to a lesser extent, Barrett. Now they ask for Republicans to keep an open mind? Oh come now

    1. Unlike Garland, Bork got a hearing and an up-or-down vote in the full Senate. The Judiciary advanced Bork’s nomination for a full Senate vote even though a majority of the SJC were against confirming him. The general Senate vote against Bork was bipartisan, and the Senate then confirmed the next nominee with a bipartisan vote. But do tell us how “despicable” it was.

    1. Dream on. Trumpism/Q-Anon is being marginalized. Fox News does not even air Trump’s rallies anymore! To date, Turley has ignored the 1/6 investigation. He will not criticize it. That should tell you where he stands.

  16. You have to remember that Biden was elected to return the Nation to calm competent leadership. More that 4 decades of DC experience, Senator. Vice President, multiple attempts at the Presidency. The very best person as determined by the DC elite. Not a single person in the United States had better qualifications. No other person would have led us to all the accomplishments we have seen in just 12 months.
    A huge advantage that Biden has is his intuitive understanding of messaging. 4 decades in DC, and the man has a knack for always choosing the tone and tenor of his messaging to advance his agenda. All that experience is why there are never any mistakes in messaging. He is always using the best words, the correct metaphors, great analogies, a master of the the political art to communication. Biden would never be so stupid as to tell the world he would limit his choice of SCOTUS justice to just 7% of all available candidates
    We elected a person that would never sasy something so stupid.

    1. Biden wasn’t chosen by the DC elite. He was chosen by average Americans in state primaries.

      He wasn’t among my top choices for the Democratic nominee, but I remain totally happy that he beat Trump, who was the worst President we’ve ever had and hopefully will be tried for some of his crimes.

  17. Hirono: “I would like them to base it on law, which would be nice”, Nice?

    This administration has ignored, violated so many laws and American values I can’t see why he wouldn’t nominate an illegal alien.

      1. Only if it’s a transgender illegal alien who won a trophy for swimming across the Rio Grande faster than all the female swimmers.

    1. They wouldn’t be illegal in this case. The Constitution gives the President the DUTY to select and nominated a candidate and specifically does not list any other criteria. Once nominated The Senate and only the Senate confirms, rejects or even ignores. They alone set the rules if aNY.

      Nominate
      Confirm

      and that is the entire substantative requirement.

      To get to the root of the argument which has no merit the CITIZENS already filled the function as is their right, duty and responsibility when they voted for one President and 100 Senators. Can’t get more democratic than that and yet we are still not a democracy when it can be so easily manipulated and twisted at the basic voting level.

      Whose to blame? Start with lack of education in the schools and homes media bias.

      Sequence is

      Vote
      Nominate
      Confirm

      with no other comment from the cheap seats involved.

  18. If we take the law out of the equation we have no need for the Supreme Court or, indeed, the judiciary branch. We can just let cases of national moment be decided by The View and stop pretending there is such a thing as justice in this country.

  19. Biden’s universe of nominees is too broad. The candidate should also be openly bisexual since that minority has never had representation on the Court.

    1. A black pansexual trans woman who never went to law school but identifies as a lawyer should be his next pick. That should check all the boxes.

      1. HaHaHa! Actually, it wouldn’t particularly surprise me. Whatever happened to Rachael Dolezal, the trans-black woman who was born white? Since she’s been both black and white, her nomination should keep everyone happy.

        1. Funny you mentioned her, because I was just thinking about Rachael Dolezal yesterday.

          If simply choosing to identify as a woman can trump biological sex, then by that same reasoning, choosing to be black should trump phenotype. There is no genetic race. People of the same race tend to share certain physical characteristics, but the range of people who consider themselves black is quite varied. Why not make it an identity? If state of mind matters more than chromosomes, then why not something so much less quantifiable as the color of one’s skin?

          Why can’t a white woman dye her blonde hair black, get a tight perm, go to the tanning salon, and identify as black?

          It’s illogical that trans gender is OK but trans race is not. Or trans age. Or trans species. Or trans education. There are people who sincerely believe they are vampires, werewolves, dragons, and mermaids. It’s real to them. Society should have to adjust. Tanks in the work place and the day off after every full moon should be part of the ADA.

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