President Joe Biden has the right to nominate his choice to serve on the Supreme Court, but shouldn't "engage in identity politics" and say he's "not going to necessarily pick the most qualified person but the most qualified Black woman" to replace retiring Justice Stephen Breyer, Harvard Law professor emeritus Alan Dershowitz told Newsmax Thursday.
"There are enormous numbers of qualified Black women, and others out there" to fill an appointment, Dershowitz said on Newsmax's "National Report."
"But for the president and the Senate to set up a quota system this way is just un-American."
If Biden were to say he was going to appoint a Muslim or a Jew, that would also be "unconstitutional," said Dershowitz.
Biden, when running for office in 2020, promised that he would appoint a Black woman to the Supreme Court if given the opportunity, and press secretary Jen Psaki on Wednesday confirmed that he will keep that promise.
Dershowitz said Thursday that it would be "wrong" for Biden to set such parameters, but "he's going to do it" as he's a "man of his word. He's an honorable person. He's just wrong to have announced that there are racial and gender exclusions."
"What if he were to say, or a president were to say 100 years ago, Don't worry about me. I'm going to appoint a white person to the Supreme Court. You don't have to worry about me," Dershowitz said. "Or, I'm appointing a Christian to the Supreme Court. Don't worry about me. No atheists need apply. That would be unconstitutional."
Dershowitz also said he believes Biden, "who I voted for, and who I've known for 40 years, should know better."
Dershowitz pushed hard in 1994 to get then-President Bill Clinton to nominate Breyer for the Supreme Court, and said he has known him for almost 60 years, as they clerked for the same justice.
"He's been a great justice because he hasn't been a knee-jerk liberal," said Dershowitz, adding that he hopes Breyer is replaced by someone who is also pragmatic.
He said he believes that no matter which party is in power, the nomination should be of a centrist, not "radicals from the radical fringe of their party."
Dershowitz also reiterated that he does not believe there is any scenario in which Biden would nominate Vice President Kamala Harris, who is a former California attorney general, to the Supreme Court.
"She wouldn't get a single Republican vote so it would be 50-50, and if it's 50-50 does she get to confirm herself? Obviously no," said Dershowitz.
He also spoke out about Senate Majority Leader Chuck Schumer's comments that Biden's appointee would be quickly confirmed.
"That's not his job," said Dershowitz. "His job is to have open hearings with an open mind and decide whether or not to confirm based on the merits. He shouldn't state in advance that he's going to confirm whoever the president nominates. That politicizes the Supreme Court to a degree that the framers never intended it to be politicized."
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