Breyer to Retire, Part lll
President Biden has made it clear that he will restrict his pool of Supreme Court candidates to black women only, thus excluding almost 95% of the population from the get-go. How this yields the most qualified possible nominee has yet to be explained; perhaps commenters can give me a clue. I’m assuming here, of course, that Supreme Court qualifications are things like fidelity to the Constitution, legal scholarship, broad experience, fair mindedness and self discipline. What a candidate looks like is decidedly not a qualification for the Court, or probably much of anything beyond making your way in Hollywood.
But enough of what I think. What do the American people think? ABC News polled the question.
The ABC headline is: “Majority of Americans want Biden to consider ‘all possible nominees’ for Supreme Court vacancy.” The first paragraph reads:
A new ABC News/Ipsos poll finds that a plurality of Americans view the Supreme Court as motivated by partisanship, while President Joe Biden’s campaign trail vow to select a Black woman to fill a high-court vacancy without reviewing all potential candidates evokes a sharply negative reaction from voters.
Not that this should come as a surprise.
During the spring 2020 presidential primaries, days before his set of big wins on Super Tuesday, Biden pledged to nominate the first Black woman to the Supreme Court, if elected. Now, with the chance to do so, just over three-quarters of Americans (76%) want Biden to consider “all possible nominees.” Just 23% want him to automatically follow through on his history-making commitment that the White House seems keen on seeing through. At a ceremony honoring the retiring justice, Biden told reporters he is able to honor his promise without compromising on quality. (Emphasis added)
Oh, you can preemptively eliminate almost the entire population “without compromising quality.” I wonder what the MSM would be opining if Donald Trump had said that.
Well, actually, I don’t wonder.
Although the poll’s sample size was not large enough to break out results for Black people, only a little more than 1 in 4 nonwhite Americans (28%) wish for Biden to consider only Black women for the vacancy. Democrats are more supportive of Biden’s vow (46%) than Americans as a whole, but still a majority of Democrats (54%) also prefer that Biden consider all possible nominees.
Democrats hope that the nomination will re-engage Democrats, who are sorely in need of a boost in the run-up to what is shaping up to be a very challenging midterm election for the party.
For sure. The primary criterion for selecting Justices should be finding the red meat that will “re-engage” your party. All this legal scholarship and professional standing stuff is baloney.
Still, if this counts as an excuse, President Biden does need to goose the base just now, given that he seems poised to lose Congress in about nine months. The ABC poll showed high disapproval of Biden’s handling of a range of issues, including a couple of interest to followers of this blog.
A glaring weak spot for Biden is inflation, where 69% of Americans disapprove of his handling of this key issue. Speaking in Pittsburgh Friday, Biden acknowledged the crush of inflation, pitching his Build Back Better social spending plan as part of the remedy….
Troublingly for the White House, only 1% of Americans view the state of the nation’s economy as “excellent,”and only 23% say it’s “good.” Three out of four Americans said the state of the economy was “not so good / poor.”
Biden sees other troublesome disapproval numbers surrounding his handling of gun violence (69%), crime (64%), [and] immigration (64%)…
“Gun violence” is liberalspeak for “murder,” which has surged over the past two years of victories for criminal justice “reform” as it has seldom if ever surged before.
Still, if the candidate pool must be shrunken in the way the President insists he will do, I have an idea. Let him nominate Janice Rogers Brown, daughter of sharecropper and former Justice of the California Supreme Court (seven years) and the US Court of Appeals for the District of Columbia (twelve years until her resignation in 2017). Although then-Senator Biden filibustered this brilliant black woman in 2005, I’m sure that, in the name of “bringing the country together” — a goal Mr. Biden has relentlessly told us he seeks — he will now relent. And, as an extra added bonus, Judge Brown actually is qualified for the Supreme Court.
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Didn’t Prez Trump produce SCOTUS short lists as a candidate that served to formally and functionally exclude “almost 99.9999% of the population from the get-go”? Also, I believe he pre-committed to “a woman” to replace Justice Ginsburg — even with that commitment, he could have picked Judge Brown over now-Justice Barrett. Would you agree that, on paper, Judge Brown was “more qualified”? Of course, you and I know that Prez Trump never even had Judge Brown on his short lists because she was, by 2016, “too old” (which, of course, is what also gets you thrown out of Hollywood).
Until we see who Biden selects, Bill, I am inclined here to just inquire whether you think professional and personal diversity is a virtue or a vice in a SCOTUS selection once we satisfy your articulated criteria about “fidelity to the Constitution, legal scholarship, broad experience, fair mindedness and self discipline.” I assume you believe millions (or at least thousands) of people of all sorts of backgrounds may be qualified for SCOTUS. Based on this assumption, do you think we should want the nine Justices to reflect some measure of professional and personal diversity or is that a misguided presidential concern?
Yup, once you come up with a list, then virtually everyone in the country will have been excluded. But that’s not the relevant question. The relevant question is what criteria you use to come up with the list to begin with. To my knowledge, Trump never used race or sex or anything immutable to come up with his list. Compare Joe Biden, who refuses to consider anyone FOR THE LIST unless that person is a black woman.
It makes sense as a political payoff for help with the South Carolina primary (which is being widely conceded as Biden’s real reason), but it’s awful if we’re looking for the best qualified candidate.
And speaking of Trump: If Trump had said, “I’m going to pick my SCOTUS nominee, but will categorically exclude Asian-Americans, Latinos, and black men,” what do you think the MSM would have said? Am I sniffing a double standard here?
Judge Brown had a good deal more experience that now-Justice Barrett, but that was a function solely of age, not of the important criteria (legal acumen, scholarship, fair-mindedness, self discipline, etc.). So I have no problem with Justice Barrett. And I confess a degree of satisfaction with the fact that she helped break the Harvard-Yale-Stanford hold on SCOTUS appointments. The Imperial Triumverate is getting a bit snooty for my tastes.
As to your second paragraph: I care about the race and sex of SCOTUS justices to the same extent that I care whether they’re left handed or right handed, or have brown hair v. black hair — in other words, zero. As I noted in one of my earlier posts, the courts were never intended to be representative in the way the political branches were. To the contrary, they were designed by the Framers to be oblivious to a “count-the-noses” sort of representation in favor of the virtue that liberals rightly praise (at least in circumstances more congenial to their politics), to wit, independence and anti-majoritarianism.
If I had my druthers, I would have a Supreme Court consisting of nine Clarence Thomases — not because of Thomas’s race or sex, but ONLY because of his iron-willed fidelity to the Constitution, honesty, clarity, and refusal to be intimidated
You did not answer my question, Bill: “Do you think we should want the nine Justices to reflect some measure of professional and personal diversity or is that a misguided presidential concern?” Maybe you are indirectly saying no with your last sentence, but I do not quite understand why there should be nine Justices if you want them all to have the exact same history and viewpoint. (Notably, your non-answer does suggest you think educational diversity is important, so I actually think you support consideration of certain kinds of diversity.)
So, hoping to get a direct answer to a serious question, let me try again: “Do you think we should want the nine Justices to reflect some measure of professional and personal diversity or is that a misguided presidential concern?”
The answer is yes, with the caveat that your phrase “some measure” is doing a lot of work in that sentence. I would not, for example, want someone who is “diverse” because he or she has been doing, or has spent his/her career advancing, child rape, swindling Grandma, selling smack to high schoolers, doing contract murder, etc. Welcoming “some diversity” is not, as I would use that phrase, an open door to the notion that anyone’s career and character is just as good as anyone else’s career and character. That notion or anything like it is 100% false.
I surmise every Prez and Senator agrees with you on that career and character matters for a Supreme Court slot, though it seems there are divergent views as to how to judge character when facts are in dispute such as in the recent case of Justice Kavanaugh. That said, I appreciate that you acknowledge that professional and personal diversity is a proper concern for Prez Biden as he decides who to nominate to replace Justice Breyer.
What I acknowledge is, as you put it (emphasis added), that “SOME MEASURE of professional and personal diversity” is a permissible, but not a compelling, factor for a President to consider — after the more important criteria are met, to wit, rigorous fidelity to the text of the Constitution, legal scholarship, a sharp and discerning mind, respect for the separation of powers, modesty, self discipline and fair-mindedness. Then we can look at the secondary stuff like diversity.
I should add as a footnote that Pres. Biden’s criteria seemed designed to produce the LEAST diverse batch I ever heard of — again, preemptively excluding almost 95% of the population, and imposing what amounts to an unyielding sex and race quota that wouldn’t pass muster in a run-of-the-mill employment discrimination suit. And he did this, not for any high-minded reason (although his allies sometimes pretend otherwise), but strictly as a quid pro quo payoff to Congressman Clyburn for his political help in the South Carolina primary.
Upon reconsideration, I’m going to overrule my earlier answer. While viewed in isolation, a consideration of “diversity” would be harmless once the other, far more important criteria are met, I was short-sighted in viewing it in isolation. The unfortunate truth is that, once diversity gets its foot in the door as a permissible consideration, it will wipe out everything else and become the whole fulcrum of the debate. Indeed, this has already started to happen. If a Republican opposes Biden’s black female candidate for any reason, that reason will never get a fair hearing (if it gets any hearing at all), and the only thing we’ll have left is a personality-ridden argument about whether and how much the objecting Republican is a racist.
Again, diversity viewed separately is at least arguably a minor virtue. But because it is sure to become the divisive and poisonous kudzoo of judicial selection, covering and corrupting everything else, it can’t be allowed to start.
I do not see why diversity consideration should or must be a “divisive and poisonous kudzoo.” I do not recall that it served this role when Prez Reagan and Prez Trump expressed interest in diversifying the court by picking a woman. Similarly, I do not think it divisive or poisonous — or misguided — for you to express concern that all the current justices were educated at only a few law school. I would hope we could and should all acknowledge (and even celebrate) the reality that (1) legal issues and interpretations are not like math problems better done by a robot/computer than by a collection of humans, and (2) legal issues and interpretations will generally be better AND better accepted when the collection of humans reflect a diversity of personal backgrounds and professional experiences. This really should not be so hard — unless and until some people want to assert or imply that a commitment to diversity necessarily means a commitment to lower standards. That is the idea — that some are inherently higher and some are inherently lower — which is truly divisive and poisonous.
“I do not see why diversity consideration should or must be a ‘divisive and poisonous kudzoo.’”
I don’t see it either, but that’s what happens.
“I do not recall that it served this role when Prez Reagan and Prez Trump expressed interest in diversifying the court by picking a woman.”
I wasn’t thrilled with their diversity bent either, since race and sex are simply not factors that affect one’s intelligence, scholarship, fair-mindedness, etc, but for however that may be, sex-based divisions evoke nothing like the heat and fury of race-based divisions.
“Similarly, I do not think it divisive or poisonous — or misguided — for you to express concern that all the current justices were educated at only a few law school. ”
That’s because, except for a few eggheads like you and me, no one knows or gives a hoot where the Justices went to law school. And my “concern” was more impish than serious, since Harvard, Yale and Stanford are such juicy targets these days.
“I would hope we could and should all acknowledge (and even celebrate) the reality that (1) legal issues and interpretations are not like math problems better done by a robot/computer than by a collection of humans, and (2) legal issues and interpretations will generally be better AND better accepted when the collection of humans reflect a diversity of personal backgrounds and professional experiences.”
Why do so many people believe that if you’re really smart, well educated, self-disciplined, modest and circumspect, then you have less “human feeling” than anyone else? I think that’s complete bunk, unsupported by anything but voodoo.
“This really should not be so hard — unless and until some people want to assert or imply that a commitment to diversity necessarily means a commitment to lower standards.”
This puts me in mind of Sen. Roman L. Hruska’s immortal pitch for diversity: That since the world has so many mediocre people in it, why shouldn’t we have some on the Supreme Court? Upshot: Whether diversity turns out to mean the embrace of lower standards depends on what it’s reaching out to include. And this problem is particularly acute when the quest for diversity starts to crowd out the more important qualities we want in judges, something which — as I noted — is already happening.
“That is the idea — that some are inherently higher and some are inherently lower — which is truly divisive and poisonous.”
I’m glad to see you join me in strongly condemning the past (and continuing) gutter-level attacks on Justice Thomas: That the uncorroborated (and liberal-sponsored) accusations of misconduct against him MUST be true because “black men have voracious and uncontrolled sexual appetites.” The Democrats’ (including Joe Biden’s) opposition to him in 1991 was rooted in this disgusting racist slander, which they kept about an eighth of an inch below the surface. The idea that “the woman must always be believed” had not yet entered the public sphere, and would have to be yet further postponed when a most inconvenient woman, Jennifer Flowers, started squawking a while later.
Personally, I enthusiastically supported Justice Thomas’s nomination. Did you? Did the “diversity” crowd? Where? I also enthusiastically supported Justice Barrett’s nomination, she being the only mother on the court (motherhood being a very, very important human experience). Did you support her, given her diverse experience? Did the “diversity” crowd? Where?
The Left’s devotion to diversity would seem to be a sometime thing, no? That’s because, as I know and I’m pretty sure you know, it’s not really diversity that’s at issue. That’s a cover. It’s about two other things. First, it’s about Biden’s paying a political debt to Clyburn for Clyburn’s help in the South Carolina primary. Time to admit it, don’t you think? Second and more important for the long run, it’s about adding another “living document” constitutionalist to the Court to help advance the more radical parts of Biden’s leftist agenda that he can’t get through Congress.
In short, the stuff about diversity is just a cover for putting a lefty on the Court. Not that anyone should be, or actually is, unaware of this.
Bill, there is too much here to respond in full, but it is silly for you to suggest that Biden et al could not find a “lefty” who was white and male. Moreover, though diversity concerns and ideology concerns may move in lockstep for some, I have long celebrated all the diverse SCOTUS picks in my lifetime Justices O’Connor, Thomas, Ginsburg, Sotomayor, Kagan and Barrett for adding diversity to the court. (I also would have much preferred a Justice Miers to a Justice Alito, but I sense she proved to be an unqualified pick made by a GOP prez). I remain troubled by how “short” this list of diverse justices is, and I am excited Prez Biden is committed to adding another diverse and talented Justice to this list.
As one eager to inspire a diverse array of talented law students (of various ideological stripes) to aspire to serve in a diverse array of professional roles, I see first-hand just one of a number of ways that I think it disserves the Court and the country when it appears only old white men are in charge of everything. Notably, less than 20% of the current US population are white men over 55, but the Prez, Chief Justice and Senate leaders are old white men and (save for Prez Obama) nobody of any other demographic has ever served in these roles. (Given current polling, the Speaker of the House is likely to be an old white man again soon.) If one genuinely believes important talents and virtues — e.g. being “smart, well educated, self-disciplined, modest and circumspect” — are at least somewhat evenly distributed among persons of a variety of backgrounds, I would think one purportedly concerned about “excluding” a lot of the population would be especially troubled that we have historically ONLY drawn from an old white man talent pool.
More fundamentally, when only a small slice of the population is always charge, it creates a perception (whether accurate or not) that the rules of the game for our society are tilted to favor that population. Put another way, for some political operatives and you inside-the-Beltway types, maybe Biden’s commitment to a diverse SCOTUS pick is just run-of-the-mill ideological work. But I see it as an important and valuable signal that our nation remains deeply committed to, as MLK put it, “make justice a reality for all of God’s children” AND I am hopeful that a more diverse judiciary makes it more likely that all Americans PERCEIVE justice to be reality for all of God’s children.
Just one item for right now: “… it is silly for you to suggest that Biden et al could not find a ‘lefty’ who was white and male.”
That would indeed be a silly suggestion, which makes me happy I never made it. Of course the Dems could find lots and lots of white male lefties, but the White House knew that, in a closely divided Senate, they would have a better shot of intimidating Republicans from opposing a nominee, however meritorious that opposition might be, if they could play the race and sex card. You’re not going to be able to play that card with a Merrick Garland type.
If the WH did not know this on its own, they could have found it out by reading a blog post or two by your very own self at the time of Garland’s nomination. On SL&P, you politely lamented that Obama missed an opportunity, legally and politically, when he chose Garland over Judge Ketanji Brown Jackson. You knew that the Rs would be in a tighter spot politically if they opposed Jackson.
But I don’t want to miss out on this important point, either: I think the main reason you’re enthusiastic about Judge Brown Jackson is that, being a man who keeps his eye on the ball, she was a public defender and a reliable pro-lenient sentencing vote on the USSC. These of course are exactly the main reasons I have my qualms about her. I don’t give a hoot what sex or race she is, just as I didn’t give a hoot what sex or race the brilliant Judge Janice Rogers Brown was (but maybe Sen. Biden did when he opposed her — I wouldn’t know).