by Jonathan Turley Mar 2020
In his debate with Bernie Sanders, Joe Biden made two pledges to voters and asked his opponent to do the same to nominate only a black woman for the next open Supreme Court seat and to choose a woman as his vice president. Even with identity politics, the pledge to impose a gender and race requirement for the next Supreme Court nominee is as ironic as it is troubling. What Biden was declaring, and what Sanders wisely avoided, would effectively constitute discrimination in admission to the Supreme Court. Indeed, the Supreme Court has declared that such race or gender conditions are strictly unconstitutional for admission to public colleges.
The pledges that Biden has made amount to this. No matter how qualified men or, in the case of the Supreme Court, women who are not black may be, he will not consider them as candidates. In the case of vice president, such gender discrimination would be allowed, as presidential candidates can select a running mate on any grounds and voters can decide if they approve. Justices, however, are lifetime appointees, and presidents have always been careful to state that, while they seek diversity among their nominees, they would appoint the most qualified person regardless of race, religion, gender, or sexual orientation. But in a single declaration, Biden quickly dispensed with even the pretense of equal consideration.
Imposing an absolute requirement that a nominee be a particular gender and race is effectively an affirmative action pledge. It is precisely what the Supreme Court already declared to be unconstitutional discrimination. In the 1977 case of Regents of the University of California versus Allan Bakke, the Supreme Court found quota and affirmative action admissions policies based on race to be unconstitutional. While the justices were fractured on the logic, a clear plurality on the bench supported the view that preferring “members of any one group for no reason other than race or ethnic origin is discrimination for its own sake,” adding “this the Constitution forbids.”
The Supreme Court handed down decisions over the next 20 years that struck down admissions policies that directly or indirectly used race as a critical element. It continued to allow race and gender to be used as part of an overall effort to promote diversity so long as it was not the emphasis or overriding criteria. That is precisely the position of past presidents, and Sanders, in saying that they want greater diversity without declaring that men or those who are not black will not be considered, as Biden pledges.
In the 1977 case, the Supreme Court rejected claims that discrimination in favor of a minority is not really discrimination at all. The Supreme Court declared that “the clock of our liberties, however, cannot be turned back to 1868” and “it is far too late” to embrace any discrimination for “special wards” or groups. This is more damaging when a discriminatory policy is used to select members of the highest court responsible for protecting us from discrimination. Biden is promising to shape the Supreme Court with conditions that it has previously declared forbidden by the Constitution.
His policy would also dramatically reduce the pool of potential nominees since fewer than 230 African Americans have served on the federal courts, and the majority are men. The number is greater on state courts, however, presidents have preferred picking justices from federal courts. Even if one branches outside the judiciary for a nominee, the pool is a fraction of the nondiscriminatory population traditionally considered by past presidents.
Biden has taken the position that he will not consider any candidate who is a man or a woman who is white, Asian, Hispanic, or other minority that is not black, no matter how qualified. He would not consider a nominee like Ruth Bader Ginsburg because of the color of her skin. He would not consider Thurgood Marshall because of his gender. Louis Brandeis and Oliver Wendell Holmes would be two-time losers under this policy. Indeed, this is just ironic for those four members of the Supreme Court who have voted consistently to uphold admissions policies based on race. Now their own bench could be the subject of a threshold selection not based on merit.
Particularly disappointing is what this policy says about the way in which Biden views the most important criteria for justices. The Supreme Court has always been treated as the place for the best legal minds who stand objectively above their peers in intellect and abilities. I have been critical of the past failures to nominate such leaders. There is no doubt here that identity politics played a role in some nominations, but presidents have at least maintained an appearance of their selections based purely on merit.
Biden now also belittles those minority jurists who can compete for the Supreme Court without an assurance that no whites or other women will be considered. In the name of diversity, Biden embraces discrimination. The Supreme Court denounced such rationalizations as harming minority groups, concluding that they would “only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth.”
Floated are Kamala and Stacy Abrams sister.
But whoever she is, she sexually assaulted boys and girls in school over 25 years ago.
Some of them will remember it clearly, except for exactly what day, how they got there, how they got home, who else was around and where it happened.
Screw the content of her character.
Does she check all the right boxes?
SCOTUS requires men and women.
Board rooms require (by law in CA) both men and women.
Families, otoh, don’t need any such thing.
That’s sexist and racist. Literally.
This reduces whoever the nominee is to a token, chosen for skin color and gender, qualifications irrelevant. And she will forever be regarded as such. That is unfortunate
Have you seen what happens when Democrat try to make selections based on competence? I guess they have to stick to what they know best: pandering.
In Federal hiring, anywhere else in the entire federal gov’t, this would be ILLEGAL.
But Joe gets away with murder.
Of course, she’ll have to be able to lie remorselessly to support the Democrat political agenda, like Sotomayor. That’s all that matters to idiot Biden.
It wont affect the ideology of the court. having 2 Justices that will blather incredibly ignorant uninformed garbage will just make it more entertaining for social media junkies who get all their news and education from.
I had read where the court was taking up affirmative action this term. A case can be made for this one fitting the affirmative action definition.
It has also been reported that Breyer was not pleased with the sudden announcement. Rather, he preferred to make his retirement public at the conclusion of the term in June as has been customary in the past.
The tell here is the democrats know they are going to lose the Senate in the midterms and want as much time as would be positive push their nominee forward. However, the Republicans could procedurally block the appointment. But that would require Collins Murkowski and Romney to vote as a Republican and not as a democrat
All they have to do is nominate a non-radical, non-racist, non-ideological, non-activist nominee. Then there would be no conflict and a rapid approval.
Providing t hat his own Democrat Party founded the KKK and Lynched blacks Bull Conners was Democrat and the late Robert Byrd was in the KKK
In 2003, Joe Biden Filibustered and Voted Against Nomination of a Black Woman to the Federal Bench
In 2003, then-President George W. Bush nominated Janice Rogers Brown, an associate justice on the California Supreme Court to serve as a Judge on the United States Court of Appeals for the District of Columbia Circuit. She was the first black woman nominated for the federal bench.
But Rogers Brown had a problem; she was a libertarian-conservative and refused to play ball with civil rights organizations.
One of her major decisions was a dissent in the case of forcing cigarette manufacturers to put warning labels on packs and cartons. A truly libertarian decision. She also attacked the New Deal, which gave us Social Security and other programs as “the triumph of our socialist revolution.” You can imagine the anger of her liberal colleagues over that one.
But Joe Biden, champion of civil rights and the president who has gloried in naming the first minorities to several positions in his administration, filibustered against her nomination and voted twice against her. When Biden had the chance to vote for a black woman, he declined.
Joe Biden filibustered and voted against Janice Rogers Brown — TWICE!
Never forget what Democrats, & notably @JoeBiden
, did to Janice Rogers Brown, Priscilla Owen – but more… Miguel Estrada. Destroying a good man specifically because he is Hispanic. We know this to be factually true, but the beltway media elites brush it aside. #RacistDCDemocrats
Well, obviously Janice Rogers Brown wouldn’t have voted for Xiden, and by his calculation that means she “ain’t black.”
It’s good that Biden is openly racist against white people, maybe some will learn from this.
The democrat party is going to lose 40% of the male black vote in this year’s midterms. The democrat party is dying and that is a good thing.
White House pushes back on ‘disingenuous attacks’ against Jackson
Hawley said “for sure” he would press Jackson about this part of her judicial record and that “all the offices” of Republican members of the Senate Judiciary Committee have been in touch on the issue.
Idiot Biden wouldn’t nominate her if she wasn’t unacceptable. Just look at Obama and “moderate” Garland.
Grassley: White House Covering Up 48,000 Documents on SCOTUS Nominee Ketanji Brown Jackson (VIDEO)