President Joe Biden's nomination of Judge Ketanji Brown Jackson to the Supreme Court wins on the merits – her resume – but the vow to pick a Black woman going in unfortunately distracts from that, according to legal expert Alan Dershowitz.
"I think she's terrific – I don't like the process by which she was selected, I don't like the fact that the president campaigned to exclude everybody but Black women, but I think he picked the right person," Dershowitz told Sunday's "The Cats Roundtable" on WABC 770 AM-N.Y. "She adds diversity to the court."
The diversity she adds is not her ideas – the court is already too partisan, Dershowitz told host John Catsimatidis – but she brings the legal persecutive of a public defender. Dershowitz has been a defense attorney working pro bono causes he believes in for decades.
"She's a public defender," Dershowitz added. "There have been no public defenders on the court for many, many years."
But the partisan confirmation process in the Senate has made it certain only liberal or conservative justices will be put on the Supreme Court, Dershowitz lamented.
"Any justice who is going to be picked from now on is going to be a predictable vote," he continued. "The days of putting [Benjamin] Cardoza on the court when Herbert Hoover was president, only because he was the greatest judge in the United States — those days are over.
"The Supreme Court has become a predictable, partisan institution."
Dershowitz said arguing in Supreme Court is a fruitless endeavor for a lawyer, because the outcomes have become predetermined.
"I never wanted to argue in the Supreme Court," Dershowitz said. "Why? Because it didn't make a difference.
"When I argue in the Court of Appeals or the District Court, I can actually influence the outcome of the case, but when I argue in the Supreme Court, I've already counted noses. I know who's voting for me. I know who is voting against me."
While it is inevitable a judge comes to "the court with a point of view," the court has never been this partisan, because of the contentious Senate confirmations.
"Really, you're arguing to Chief Justice Roberts and sometimes to [Justice Brett] Kavanaugh – rarely to anybody else," Dershowitz said.
"It's has always been political, but it has never been as partisan as this. Did it start with the rejection of Bork? Or did it start with Bush versus Gore?
Dershowitz "blame's on both sides."
Ultimately, Dershowitz predicted a "very highly qualified" Judge Jackson will be confirmed as the first Black woman on the Supreme Court.
"I think she's going to make it," he concluded. "It's going to be a close vote, because it's partisan."
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