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Biden's Replacement for Breyer Is Already in Trouble

Biden's Replacement for Breyer Is Already in Trouble

Michael Dorstewitz By Monday, 31 January 2022 12:16 PM EST Current | Bio | Archive

President Biden hasn’t even nominated a person to replace retiring U.S. Supreme Court Justice Stephen Breyer, and he’s already facing problems — both legal and political.

"I’m looking forward to making sure there’s a black woman on the Supreme Court, to make sure we, in fact, get every representation," he said during a South Carolina debate.

Biden reiterated that intention last week during Breyer’s formal retirement announcement.

He promised that his choice "will be the first black woman ever nominated to the United States Supreme Court,” adding, "It's long overdue."

Biden’s timing was unfortunate.

As Committee for Justice president Curt Levey observed, his announcement came on the same week that the Supreme Court agreed to hear two cases that will review the constitutionality of universities setting race-based admission preferences.

"That promise is more than a racial or gender preference,” he wrote. "It is a narrow, rigid quota. It’s essentially a sign on the White House door saying ‘men and members of all other races need not apply.'"

Just how far the president may be out of touch with the reality of the times was reflected in an ABC News/Ipsos poll indicating that 76% of respondents want "all possible nominees" considered, as opposed to 23% who want Biden to nominate a black woman.

But more than simply out of touch, Levey argues that Biden’s insistence on considering only an African American woman more-than-likely violates both the constitution and federal statutory law.

"The Supreme Court has been clear that quotas violate the Constitution’s Equal Protection Clause and the federal statute banning discrimination in hiring," he added.

His assessment is shared by other legal scholars, including Alan Dershowitz, who told Newsmax TV last week that "for the president and the Senate to set up a quota system this way is just un-American.”

The Harvard Law professor emeritis added that "If Biden were to say he was going to appoint a Muslim or a Jew, that would also be “unconstitutional."

George Washington University Law professor Jonathon Turley agrees.

He observed in a Wall Street Journal column that "Justice [Lewis] Powell declared in [Regents of the University of California v.] Bakke that ‘preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.'"

Turley concluded that "By keeping his 2020 pledge, Mr. Biden will engage in discrimination for his own sake."

But what about Reagan? Democrats ask. During his 1980 presidential campaign, Ronald Reagan made a similar promise — similar, but not quite the same.

On Oct. 15, 1980, Reagan announced that “one of the first Supreme Court vacancies in my administration will be filled by the most qualified woman I can possibly find. … It is time for a woman to sit among the highest jurists.”

Although Sandra Day O’Connor was his first nominee, and was later confirmed by the Senate to become a Supreme Court Justice, Turley observed many men were also seriously considered, including Robert Bork, Dallin H. Oaks, Malcolm R. Wilkey, Philip B. Kurland, Edwin Meese III, Lawrence Pierce, an African American.

Finally, if the Senate confirms Biden’s eventual nominee along strict party lines, the confirmation itself may be unconstitutional.

Dershowitz observed on Sept. 23, 2020 that "Never in our history has a Supreme Court nomination been confirmed by an equally divided vote among U.S. senators, with the vice president breaking the tie."

The nominee at the time was Amy Coney Barrett, and Dershowitz said that if a few Senate Republicans were to vote against confirmation, Vice President Mike Pence could have found himself breaking a tie vote.

He observed that while the vice president has the power to cast tie-breaking votes to pass or defeat legislation, it’s unclear whether that power extends to the Senate’s Advice and Consent role, as in confirming presidential appointments.

Harvard law professor Laurence Tribe was more adamant — he believed at the time that vice presidents lacked that power. And Tribe hasn’t changed his position, according to RealClearNews White House reporter Philip Melanchthon Wegmann.

"Laurence Tribe, who has counseled the Biden White House previously and who argued that Pence couldn’t break a tie to confirm a SCOTUS nominee, tells me he doubts he’d reach 'a new conclusion' now even though he wishes ‘the situation were otherwise,'" he reported.

When you elect an unserious presidential candidate who campaigns part-time from his basement, you end up with an unserious part-time president who’s ready to call it a day after four hours and then travels to Delaware for long weekends to recover from the rigors of his part-time job.

And it’s become painfully clear that this part-time president doesn’t bother to do his homework, and there’s neither a "CliffsNotes" nor a "Running a Country for Dummies" available to help him.

And his own Supreme Court nominee may suffer because of it.

Michael Dorstewitz is a retired lawyer and has been a frequent contributor to BizPac Review and Liberty Unyielding. He is also a former U.S. Merchant Marine officer and an enthusiastic Second Amendment supporter who can often be found honing his skills at the range. Read Dorstewitz's Reports — More Here.

© 2024 Newsmax. All rights reserved.

It’s become painfully clear that this part-time president doesn’t bother to do his homework, and there’s neither a "CliffsNotes" nor a "Running a Country for Dummies" available to help him. His own Supreme Court nominee may suffer because of it.
barrett, dershowitz, scotus, tribe
Monday, 31 January 2022 12:16 PM
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