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. Anonymous asks:

    “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.”

    Like us, Turley was shocked and appalled that Trump got elected, but as far back as 2011, Turley had recognized that Trump was a “carnival snake charmer.” He just underestimated how many gullible Americans there are who were unable to see through Trump as readily as he had. Because in his mind Trump has always been nothing more than an “absurd reality television star,” I doubt that Turley will waste anymore of his time condemning his revolting statements.

    Fox News will no longer broadcast Trump’s speeches. He remains a continuing embarrassment for the Republican establishment- constantly putting them on the spot to disavow his unhinged statements. The word has gone out that the less said about this lunatic, the better.

    1. “Chris Krebs . . .”

      That discredited soothsayer, again?!

      “In the last 24 hrs the former president has: (1) floated pardons for 1/6 defendants . . .”

      How would he know that? He had long since been fired.

      1. Sam,

        Trump said it in public at his rally. Lots of people know that Trump has already floated pardons if he’s reelected.

        1. Ugh.


          Such is the confusion from not dating or linking a quote.

          My “soothsayer” point stands.

          1. That comes across as ad hom, since your opinion about Krebs is irrelevant to whether his statement is correct.

            Do you have anything to say about Krebs’ actual claim from a couple of days ago?

            “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.”

            Do you agree that Krebs is correct on point #1? (said by Trump at a rally the day before Krebs’ tweet)
            Can you also agree that point #2 is correct? (said by Trump at a rally the day before Krebs’ tweet)
            Can you also agree that point #3 is correct? (in a publicly-released written Trump statement the same day as Krebs’ tweet)

            1. “That comes across as ad hom . . .”

              It’s a fact that speaks to his credibility and to his animus.

              1. No, your belief that he’s a “discredited soothsayer” is your opinion, not a fact.

                Again, focus on his very straightforward claim, not your opinion about him.

                Do you agree that Krebs is correct on point #1? (said by Trump at a rally the day before Krebs’ tweet)
                Do you also agree that point #2 is correct? (said by Trump at a rally the day before Krebs’ tweet)
                Do you also agree that point #3 is correct? (in a publicly-released written Trump statement the same day as Krebs’ tweet)

                1. “No, your belief that he’s a “discredited soothsayer” is your opinion, not a fact.”

                  Some opinions, like that one, are fact-based.

                  “Do you agree that Krebs is correct on point #1? (said by Trump at a rally the day before Krebs’ tweet)”

                  Wake me when Leftist DA’s start seriously prosecuting the rioters in LA, Minneapolis, Seattle, Portland, NYC, . . .

                  1. “Some opinions, like that one, are fact-based.”

                    Even when that’s the case, the opinion itself is not factual (T/F) (for example, one can cite some facts in concluding that someone is “the greatest composer of all time,” but who is the greatest composer is an opinion, not a fact).

                    More to the point: he made 3 claims, and there’s factual evidence for each of them, but you’re unwilling to admit it. Instead, you now attempt to deflect.

  2. The Marxism in America continues marching forward under Democrats. They are attacking SCOTUS and our children. CRT is being taught at Salinas Union School District to Hispanics in Salinas, CA.

    Hispanic Students Were Forced To Learn Critical Race Theory. They Hated It.
    Kali Fontanilla discovered that not only was CRT being taught in the classroom—her minority students were failing it.

    Indeed, CRT is referenced in the district’s ethnic course syllabus, which is available online.

    The syllabus stresses that students will study “intergenerational trauma” through an interdisciplinary and critical lens. Scholarly articles about critical race theory are included in the suggested curriculum, including “Whose culture has capital? A critical race theory discussion of community cultural wealth,” by Tara J. Yosso, a UCLA professor of education who specializes in critical race theory.

    1. This is truly sad. Yet I cannot in good faith object to the introduction of CRT to students (HS or older), because you know they’re going to hear about it, -and when they hear about it from other than parents/teachers/professors, they become suspicious that something was being hidden from them…which sets the stage for proselytizing.
      So, go for it! BUT make sure that you have an equally credentialed and popular person who introduces them to opposing/challenging “theories.” And then divide the class in half and the final exam is a DEBATE….The students will end up teaching the teachers something–about the effect of influence and propaganda on young minds.

    2. From Estovir’s idiotic article:

      “Many of her students were failing one of their other classes: ethnic studies. This was at the height of the pandemic, and instruction was entirely online, leaving many students in the lurch. Still, Fontanilla thought it was odd to see so many Fs.

      Salinas has a majority Mexican population; all of Fontanilla’s students were Hispanic and were learning English as a second language”.

      Here we learn Critical Race Theory was being taught in an ‘Ethnic Studies’ class. That’s like hearing Carpentry was being covered in Industrial Arts!

      The instruction was being taught online because of the pandemic. But many of the students were not proficient in English.

      Well that’s a bad combo: ‘Online instruction for kids struggling with English’. These kids are, perhaps, the types immigrants that Trumpers want to stop with a border wall. Yet Estovir is glad to use them as victims for his grievance-based politics.

      Comically Estovir loves to rail at The Washington Post. But readers of The Post are accustomed to articles more intelligent than this!

  3. Perhaps it is time for you to pick a new topic and leave this one altogether. Your posts on this topic are beginning to be quite repetitious. I finished reading this one and felt for the most part as though I had seen it before.

  4. Turley continues to lie about Trump and his nomination of Amy Coney Barrett.

    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.

  5. Black Women Judges Are Rare On Federal Courts.

    A 2020 study from the Center for American Progress found that African American women made up just 5 percent of all lower and circuit courts. At the time, only 1 percent of judges sitting on district or appellate courts on the 8th circuit (which covers a slew of red states including Arkansas, Missouri, Nebraska, Iowa, North Dakota and South Dakota and a single blue state, Minnesota) were women of color. In fact, Biden’s predecessor appointed not a single African American, male or female, to the federal courts of appeal.

    Edited From:

    “Biden’s Critics Are Clueless About His Pledge To Put A Black Woman On The Court”

    Today’s Washington Post
    On the surface it would seem that Biden’s pledge to appoint a Black woman is merely a good faith effort to correct an imbalance.
    Why this should be a red-hot controversy is highly questionable.

  6. Svelaz,

    The author makes some good points which Turley should have addressed and not avoided.

    Damn, it must be sickening for a Constitutional scholar and academic like Turley to see his name bandied about with the likes of Fox rage entrepreneurs, Hannity and Carlson. His law school as well must be embarrassed that the name of one of its distinguished professors is being spoken in the same breadth with known Trumpist LIARS.

    What a disgrace.

    1. Yeah, it’s a real shame that “Turley” and his “Trumpist liars” weren’t listening to that bastion of political correctness, the Washington Post!

      1. Turley would rather have his name mentioned with scholars and legal experts rather than talk show hosts who have no respect among the academic society in which Turley associates.

    2. Thus the socialist fascist make their Seig Heiling comment. Makes no sense to literate citizens but then they were told what to write by their ruling class of their classless society. Socialist autocracy at it’s worst.

    3. Jeff,

      Turley’s argument about Biden’s comments is literally what’s feeding into that rage he despises. Fox News cites him as the justification for criticizing Biden’s non-existent Supreme Court nominee. What is truly sad is the sheer sloppiness of his justification.

      1. Svelaz,

        Turley will get his comeuppance for contributing to, and profiting from, the Fox rage machine when he finally submits to an interview or debate. He’ll have no answer for his hypocritical silence of Hannity, Carlson, Levin, Ingraham, etc.

        I agree with you that Turley’s argument is a stretch because Turley concedes:

        “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.” (My emphasis)

        Wouldn’t it have been decent of Turley to dismiss Biden’s remarks as “badly worded” as he claimed for the law professor today?

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