The Diversity Scam
It’s not news at this point that President Biden preemptively determined that he would exclude close to 95% of the population in looking for his first Supreme Court nominee, and restrict the search solely to black women. Excluding almost everyone in advance is a remarkably stupid way to go about making critical SCOTUS appointments, as three quarters of the electorate took little to time figure out. The excuse being given for the blanket exclusion of black men, white men, white women, Hispanics, Asian-Americans and anyone else you can think of is — ready now? — diversity.
That this is preposterous on its face is not the point I want to make, since that’s too obvious to be posting about. Instead, the point worth noting is that, according to one quite prominent leader in Washington, DC, it’s not really about diversity at all.
I bring you today’s note from my friend Ed Whelan, writing in NRO’s Bench Memos:
Okay, this is news from 2005. As Joseph Epstein reminds us in his Wall Street Journal column today (nicely titled “The Unbearable Lightness of Biden”):
[Joe Biden] considers himself a champion of African-Americans, yet he eulogized Sen. Robert Byrd, a Klansman in his youth, and the longtime segregationist Sen. Strom Thurmond. The man who now promises to appoint a black woman to the Supreme Court is the same man who warned in 2005 that if President Bush nominated Judge Janice Rogers Brown, “I can assure you that would be a very, very, very difficult fight and she probably would be filibustered.”
In his typical bumbling fashion, Biden actually botched his filibuster threat—he couldn’t keep those female judges straight—and had to correct it. Here’s the excerpt from the “Face the Nation” transcript from July 3, 2005:
Sen. BIDEN: And so I did not want to limit it to the committee but I did–that did not mean that if you let it out of committee that you weren’t eligible to filibuster it. And–but I have no intention of filibustering, but he–it depends on who the president sends. But I could see a circumstance–for example, if he sent up Edith Jones I can assure you that would be a very, very, very difficult fight and she probably would be filibustered.
Ms. GREENBURG: What about…
ROBERTS: Well, what…
Ms. GREENBURG: …Janice Rogers Brown, someone else?
Sen. BIDEN: Excuse me. I’m not–by the way, I misspoke. I misspoke. Janice Rogers Brown is what I meant to say.
Don’t let Biden apologists pretend that Biden was just predicting a filibuster and not clearly threatening it. In a Senate with 55 Republicans, it is absurd to think that a filibuster might have succeeded without Biden’s support. Biden was one of 25 Democrats who tried to filibuster Samuel Alito’s nomination, so he was hardly someone who would have been among the six votes needed to defeat a filibuster of Brown.
Biden and other Democrats, it’s worth emphasizing, so vigorously opposed Janice Rogers Brown in part because of her race and (to a lesser degree) her sex. They opposed her because of her judicial philosophy but their opposition was intensified because they especially despised the prospect of a libertarian conservative justice who was a black female. ###
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That then-Sen. Biden was resolute against what eventually could have been the first black woman on the Supreme Court tells you all you need to know about the authenticity of his present supposed love of “only-black-women-need-apply” diversity.
It has zip to do with diversity. What it has to do with is, first, a political payoff to Rep. Jim Clyburn for Clyburn’s essential help is the South Carolina Presidential primary; and, second and more important, making it politically more awkward for Republicans to oppose what is likely to be a consistently pro-criminal vote (Judge Ketanji Brown Jackson, the leading contender, spent eight years zealously safeguarding the interests of criminals when she was in the Public Defender’s Office). Pres. Biden would like to smuggle Judge Brown Jackson onto the Court in the guise of the very diversity he so strongly opposed 17 years ago. What he’s actually trying to do with his (now) pious talk of diversity, though, is make opposition to Judge Brown Jackson’s uniformly pro-criminal record seem racist. This is despite the fact that criminals prey grossly disproportionately on blacks.
This convoluted, agenda-driven dishonesty is what, in the present administration, the consideration of Supreme Court appointments has become.
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Didn’t Prez Trump ” preemptively determine that he would exclude” 99.99999999% of the population “in looking for his first Supreme Court nominee” when he announced a list of 11 (all white) people in May 2016 and said he planned to use the list as a guide to nominate Justice Scalia’s replacement? And wasn’t it perfectly clear at the time that this list amounted to a “political payoff” of sorts to various GOP groups who were quite wary about how Trump might approach judicial nominations?
I do not mean this as a assertion of hypocrisy as much as a statement that everybody knows that politics and ideology drive SCOTUS picks (and other judicial picks), which is why everyone cares so much about them. That said, I still think it telling and quite problematic for the perception of justice that 9 of the last 10 SCOTUS nominees (including Harriet Miers here) were all white (also, I believe 141 of the 144 of the all time nominees where white). Though I wish we lived in a society in which perceptions of justice do not turn so much on race, people surely ask about the racial composition of juries and seem more ready to accept rulings from diverse juries (especially in racially charged cases). I suspect the same is true for SCOTUS rulings.
I do not know if Biden really cares about “diversity,” but I suspect that SCOTUS work is better perceived if it seems the product of a more diverse group. And I especially think that this current Supreme Court, now heavy with former prosecutors and government lawyers, could benefit from some professional diversity in the form of a public defenders. (Justice Gorsuch apparently did a little defense work in law school, though I would guess you are troubled by his occasional “pro-criminal vote.”)
Simple question to conclude, Bill: Do you think Judge Ketanji Brown Jackson is at least as qualified a candidate for the Supreme Court as the last nominee, now-Justice Barrett?
1. No, I think Barrett was and is better qualified. The reason is simple. My first criterion for being on SCOTUS is strict fidelity to the text of the Constitution, a la’ Justice Scalia. Barrett was and is stellar on that score. Brown Jackson does not have that record, either in scholarship or in her work as a judge.
As you conspicuously and importantly don’t deny, the real reason, according to reports, that Biden is choosing Brown Jackson rather than, say, Janice Rogers Brown (who is equally a black woman and more experienced by far), is that Brown Jackson is much more likely to be a consistent vote for convicted criminals. Isn’t that one of the reasons you are eager support her nomination (and were rooting for it some time ago in preference to Merrick Garland)?
2. Trump did not put his list together BASED ON race or sex. Biden did. That’s a huge difference, no?
3. Trump’s list was not a political payoff in anything like the sense that Biden’s list is. Biden’s candidacy was sinking out of sight at the time of the South Carolina primary, which he desperately needed to win. To do that, he needed the Democratic rainmaker in that state, Jim Clyburn, to turn out the vote for him. Clyburn’s specific price was a black woman as the first SCOTUS nominee, and Biden happily paid it. How does that strike you as a principled basis for SCOTUS selection?
Trump’s list was not a result of help with a primary or anything similar. It was a result of listening (for once) to sound advice from people who hold the same view of SCOTUS qualifications that I do, namely, first, rigid fidelity to the Constitution. Trump had flaws galore, but his criteria for judicial selection were among the best things about his Presidency.
4. “I do not know if Biden really cares about ‘diversity'”… DING DING DING Thank you, although this fact is perfectly obvious from his opposition to Judge Janice Rogers Brown, and to Miguel Estrada, and his refusal even to consider for the present seat such an excellent (and diverse if you care about that stuff) jurist as Amul Thapar.
Diversity my foot. It’s about putting a hardcore, pro-criminal vote on the Court in the mold of Justice Sotomayor — and, with the important exception of the Clyburn-linked political payoff part of it, that’s all it’s about.
5. “…I suspect that SCOTUS work is better perceived if it seems the product of a more diverse group.”
Better perceived by whom? The NYT? Mother Jones? Legal academia?
I confess that I don’t care much about how the Court’s work is “perceived,” by those — or for that matter by others more in line with mainstream thinking. The question of foremost importance to me is whether its work is honestly true to the words of the Constitution and in keeping with the constitutional requirement of separation of powers. “Perception” is just a nice word for rote result-orientation, which is not what a principled person should want in a Supreme Court justice.
Bill, the Bill of Rights, especially the 4th, 5th, 6th and 8th Amendments, are full of “pro-criminal” words. You seemingly do not want a Justice with “strict fidelity” to those provisions, you just want consistent “anti-criminal” votes. Maybe you will say I am wrong by citing all the Justice Scalia/Gorsuch “pro-criminal” rulings that you robustly embrace (and will criticize robustly all the dissents in those cases). But unless and until you indicate that you support certain pro-defendant interpretations of Constitutional provisions,, you have no basis to claim to be any more “principled” than Prez Biden or Rep Clyburn. (Also, how do you know Prez Trump’s list was not based on his view of race and sex? I did not see Judge Janice Rogers Brown or Miguel Estrada on it.)
Your steady anti-criminal sentiments are plainly a reflection of your policy preferences, but they are anything but a “principled” approach to the Constitution. There are, of course, diverse views as to how the Constitution should be interpreted with respect to its many pro-defendant provisions, but the particular ideology reflected in your comments seems to conflate your policy commitments with a text that expressly protect the individual from state power in many ways.
Maybe you will surprise me with a response that lists some “pro-defendant” SCOTUS rulings that you think showcase “strict fidelity to the text of the Constitution.” Until you do, I will have a hard time shaking the notion that being “”anti-criminal” is all you really care about (and that you are projecting when complaining about others’ “convoluted, agenda-driven” talk about the Constitution).
Doug —
You are a master at walking past questions asked of you in favor of staying on offense by coming up with a new raft of questions for me (and giving me homework assignments like preparing a list of “‘pro-defendant’ SCOTUS rulings that you think showcase ‘strict fidelity to the text of the Constitution.'” Many times that works. This won’t be one of them.
Here are some questions you have yet to answer. I’m hoping you will now.
— To return to the central point of this post: Do you disagree that President Biden is enlisting “diversity” largely as a cover to put on the Court a hard-left liberal, but intimidate any criticism of that move by making it a target for angry wails of RACISM? That’s what this is really about, isn’t it?
— Isn’t similar thinking the basic reason you said a few years back that Obama should have nominated a black woman, Judge Brown Jackson in particular, instead of Merrick Garland?
— Is paying off a political boss in a key primary state a good way to pick a Supreme Court justice?
— Don’t you favor Judge Brown Jackson in significant part because of result orientation — to wit, you believe that she, as a veteran defense lawyer, will more frequently vote for the criminal than other candidates would do? And you want that, don’t you?
As a gesture, however, I will answer one of your questions now. You write, “[H]ow do you know Prez Trump’s list was not based on his view of race and sex? I did not see Judge Janice Rogers Brown or Miguel Estrada on it.”
As you could guess, and probably have guessed, I know some of the people involved in coming up with names for the list (any you might remember that Brett Kavanaugh also was not on the original list). People who know Judge Brown (now 73) and Miguel know, and knew then, that they did not wish to be considered by President Trump.
This forum is an imperfect space to explain to you how diversity and concern for fidelity to constitutional text and principles work together, but I still will try to briefly answer you question (even though I lack the access to Beltway insiders that you clearly have).
I think Biden and the political and advocacy folks he listens to — just like with Trump before with the different political and advocacy folks he listens to — sees the value of adding certain under-represented viewpoints to SCOTUS (and lower courts) at this moment. Trump seemed keen on judge who, based in part on personal experiences, had a more robust view of religious liberties and the impact of state power thereon (and some supporters of his nominees were certainly keen to make “angry wails” of anti-religiousness in response to criticism). Similarly, I sense Biden views persons with a more robust understanding, based in part on professional experience, of the impact of our criminal justice system on the rights of defendants (and some supporters of his nominees are likely to fear racism lies behind criticism, though this fact only reinforces the realities of how much perceptions matter in the way many outsiders see the opaque machinations of Beltway insiders). This is a bit reductionist, but n the case of Trump and Biden and all those who made nominees before, I am certain there is a view toward what kinds of “results” those distinct viewpoints might produce, but that is entirely appropriate because different Presidents get elected with different avowed commitments to constitutional law, politics and policy and their relationship to judicial appointments. You know this is civics 101 despite your eagerness to avoid any effort to explain why your affinity for anti-defendant rulings isn’t really the perspective that is “convoluted, agenda-driven.”
I favored KBJ over MG and hope she gets nominated now because criminal defense lawyers (and particularly public defense lawyers) have one particularly distinct and important perspective on the operation of our criminal justice systems and on the relationship between the power of the state and the individual. Prosecutors and other government lawyers also have particularly distinct and important perspectives here, but nearly all of the current Justices have served as prosecutors and/or other government lawyers (as did Garland), whereas none have served in criminal defense for any period of time. (Contrast this modern reality with the Constitution’s framers, many of whom were defense lawyers like John Adams and Alexander Hamilton.)
I certainly favor a form of constitutional interpretation that sees problems with the kids of punishment and process I sincere believe the framers would have thought the text of the Constitution precluded like extended solitary confinement for years and heavy reliance on acquitted conduct to enhance sentences. But that is because I believe some “pro-defendant” rulings are essential to show “strict fidelity to the text of the Constitution.” In contrast, you are yet to demonstrate that you have anything more than a policy commitment in favor of state police powers that you think should get smuggled into a document plainly written to limit those powers.
Doug —
Thank you for a serious and (mostly) level-headed reply.
I would say only two things for now. First, to whatever extent result-orientation is acceptable as a criterion for SCOTUS selections, the honest thing to do is say out loud that that’s what you’re doing, rather than try to smuggle it in under a different (and, your polls are saying, more popular) rubric like “diversity.” It isn’t general diversity of viewpoint that the Left is seeking here. It’s a PARTICULAR viewpoint, namely, one that is predisposed to gush over the defendant. That’s why you, for example, favor KBJ over the other black woman candidates who’ve been mentioned, e.g., Justice Kruger. You want a defense lawyer on the court. So does Biden. Best to just say so.
Second and relatedly, defense lawyers see not just defendants, but the entire justice system, differently from the way most other lawyers see it. Particularly in this day and time, although to an extent in past years as well, defense counsel is sympathetic, not just to the client, but to the notion that the system, including the Constitution itself, is corrupt, anachronistic and racist, and that we should not “support and defend” it, as the oath of office requires, but work to overthrow and “transform” it.
I don’t want anyone on the Court who’s going to have a hard time keeping the oath. But a deeply-held skepticism about the country, its founding, and the Founders’ products including the Constitution now runs through leftist thinking generally, and defense lawyer thinking in particular. I spent over 20 years dealing up close and personal with these people.
There is a place for skepticism that deep about America: In political campaigns. If you think the Constitution is corrupt and rigged — and so want to ditch, for example, the Electoral College, or the “two-senators-for-each-state-regardless-of-size” method of apportionment we have now for the upper chamber — fine, run for Congress and make that part of your platform. But those whose chosen profession so often plays footsie with deep disdain for the Founding are not those we should be eager to entrust with faithfully implementing the document that is the Founding’s most spectacular achievement.
Bill, the only parts of the Constitution that defense attorneys are concerned with are in the Bill of Rights. Most defense attorneys would like to see the protections of the 4th,5th,6th and 8th amendments strengthened and not, “overthrown.”
1. Here is what the Biden campaign said about judicial selection, Bill: “Appoint U.S. Supreme Court justices and federal judges who look like America, are committed to the rule of law, understand the importance of individual civil rights and civil liberties in a democratic society, and respect foundational precedents like Brown vs. Board of Education and Roe v. Wade. Biden has also pledged to appoint the first African American woman to the U.S. Supreme Court, a move which is long overdue.” Biden’s platform secured over 7 million more votes and 74 more electors than Trump’s platform — and the evidence from the Jan 6 investigation strongly suggests that it was Trump and his minions like former federal prosecutors Rudy G and Sidney P, not any defense attorneys, working to overthrow our constitutional order with respect to the 2020 election. With all of the short-listers I have seen, Biden appears to be fulfilling his promise and not doing any “smuggling” or flushing documents down the toilet.
2. You really let the curtain slip on your result-oriented view of what you wish the Constitution said when you contend that a defense lawyer troubled by the current CJ status quo must want to overthrow/transform the Constitution rather than want to be faithful to implementing the document. Most defense lawyers I know sincerely believe the only proper interpretation of the text of the Constitution would prevent someone from being held in solitary for decades without a good justification and would prevent judges from enhancing a prison sentence by decades based on allegations that produced a jury acquittal. That defense attorneys see first-hand the harms of the failure of current SCOTUS doctrine to live up to constitutional text and principles in these and other many areas is not a sign that defense attorneys would have “a hard time keeping the oath.” Rather it actually presents the refreshing prospect that a defender on a multi-member court would wisely challenge those claiming to be textualists or originalists as to how these and other suspect CJ practices really square with the text and original meaning of the Constitution.
3. If you really thought the only fair and faithful reading of the Constitution was always or often anti-defendant, you would not worry about a single defender on the Court. In fact, I surmise you ultimately realize that a fair and faithful reading of the Constitution is quite often PRO-defendant, and so you worry a lot about having even a single SCOTUS member able to make that case forcefully. I sense you fear any kind of balance on the Court — though again, a defender appointment now would still mean 7 Justices who were former prosecutors and/or DOJ lawyers and one who was a former defender — because you ONLY want result-orientated outcomes that consistently elevate the power of the state to investigate and punish over the express rights secured to individuals as detailed in the text of the Constitution. The fact that you have conspicuously avoided naming even a single “pro-defendant” SCOTUS ruling that you think showcases “strict fidelity to the text of the Constitution” has made ever more clear to me that you truly are projecting when complaining about others’ “convoluted, agenda-driven” talk about the Constitution. You have somehow concocted a police-state vision of the Constitution where supposed “fidelity” to the Bill of Rights is measured in your mind by who is most eager to water down individual rights rather than champion them. No worries, I have long understood your core policy preferences, and it is useful to see you smuggle them into some distorted claim of “principle” even while hypocritically preaching that the “honest thing to do is say out loud” what results you are seeking.
Before wading into a more elaborate response, let me try to return to what I believe to be the basics of your position.
As I understand it, from having read your pieces over the years, your basic stance in criminal justice is that, overall, you would like to see shorter and fewer sentences. Is that right? And in the present context, you would like to see a new Justice who would help advance that goal. Am I wrong about that?
Bill, I am a big fan of human liberty and freedom and I am generally wary of any and all efforts by governments to restrict human liberty and freedom. When governments seek to use the immense powers of our criminal justice systems to restrict human liberty and freedom, I think it especially critical for our legal system to have lots of structural checks and safeguard for individuals to reduce the risk of misuse or overuse of these immense powers. I strongly believe that our great Constitution embodies these commitments in many ways, most particularly (though not only) through the Bill of Rights. (Notably, the only king-like power preserved by the Framers for the Prez was the clemency power which is a one-way ratchet that only benefits individuals against police power.) Arguably every original amendment in the Bill of Rights except the Seventh is about providing (numerous and varied) safeguards for individuals to reduce the risk of misuse and overuse of government (criminal) powers.
And yet, despite a founding charter that starts with a stated interest in securing the “Blessings of Liberty,” our nation has the highest rate of incarceration and imposes many extreme liberty-depriving punishments (e.g., LWOP for non-violent offenses) that much of the rest of the world views as human rights violations. I sincerely believe the Framers would be shocked and deeply disappointed that, despite their efforts to make the US a beacon of human liberty and freedom, we are now most distinctive as a nation for how we use state police powers to deprive humans of liberty and freedom.
I would like to see a Justice who shares my perspective that being truly committed to the text and original meaning and living spirit of the Constitution means asking a lot of hard questions about the constitutionality of many problematic aspect of our criminal justice system. Notably, my own fidelity to the text of the Constitution makes me a big fan of jury sentencing, which in some settings might lead to longer sentences (eg, I wonder what the Varsity Blues folks or some Jan 6 defendants might be facing if we had a robust system of jury sentencing). But my approach to Eighth Amendment renders some extreme adult LWOP sentences unconstitutional, so that likely would trim some extreme sentences. And I can give you many, many, many more examples of how I think our CJ system and existing jurisprudence now harmfully deviates from constitutional text and original principles.
Most critically, and returning to the main idea that a commitment to diversity is not a “scam,” I would like to see a nine member court include a Justice who had defended individuals in the face of the awesome power of the state. The state has great power and can feel to the individual and his counsel like a bully even when state actors are trying their hardest to act in the public interest. I am certain the 8 current Justices who are former prosecutors and/or DOJ lawyers all worked hard not to be bullies and all were sincerely committed to always act in the public interest when helping to wield the vast powers of the federal government. But none of them in that role ever for a moment had to worry about what if the lawyer on the other side decided to be a bully or just was too full of what they thought the government could or should try to do. Only a criminal defense lawyer really knows what the law looks like on that other side, and only she fully understands that the only real counterweight to awesome government power are provisions that the Framers and others placed in the text of the US Constitution. I want at least one Justice who has real experience on that other side, and I suspect John Adams and Alexander Hamilton and likely a lot of other Framers would like to see that, too.
But if you always trust the exercise of government power and all the government agents (now Justices) who were ever to eager to leverage that power in their day-to-day work, I suppose I can see why you might view even one single Justice committed to championing in all respects the Constitution’s commitment to human liberty and individual freedom as perhaps just one too many.