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Tags: supreme court vacancy

Black Female Supreme Court Nominee Won't Save Biden, Democrats

group photo of the justices at the supreme court
(Erin Schaff/Pool/AFP via Getty Images)

Paul du Quenoy By Wednesday, 02 February 2022 10:35 AM EST Current | Bio | Archive

The sudden announcement that U.S. Supreme Court Justice Stephen Breyer will retire now, while President Joe Biden can appoint a successor before the near-certain Republican takeovers of both houses of Congress in the 2022 midterms, is filling liberals with rare hope after Biden's disastrous first year in office.

The entire mainstream media, and even some conservative outlets, are swooning in the belief that successful confirmation of a new justice, whom Biden has reaffirmed will be a Black woman, will turn things around and put a badly needed end to his string of colossal failures.

This proposition is absurd.

Supreme Court appointments are a presidential prerogative and basic feature of our constitutional system. No judicial appointment has ever turned around a floundering presidential administration, nor is there any reason why this one should.

Breyer has reliably joined the Court's liberal faction in every important decision since he was appointed in 1994. Replacing him with someone at least as liberal will not alter the Court's balance, now a 6-3 Republican-appointed majority.

With a de facto Democratic majority in the Senate, confirming Breyer's replacement also poses no significant obstacle for the White House to overcome and no avenue for it to demonstrate the leadership it disastrously lacks.

To the contrary, the new justice's confirmation depends merely on Biden's ability not to lose Democratic votes. He has by no means avoided that pitfall, most recently in the catastrophic "Build Back Better" legislative defeat, but his party's caucus has been more disciplined in confirmation votes.

Senate Democrats have acknowledged the anticipated ease of the process by preparing for a quick confirmation once a nominee is announced, reportedly by late February.

Their Republican colleagues appear to have resigned themselves to the inevitable and claim to be focused on legislative business beyond the confirmation timeframe.

In short, the confirmation will, at least in a procedural sense, unfold routinely.

Nevertheless, the hope and hype belie a fact that few seem willing to recognize: that the confirmation of a new justice who meets Biden's sexual and racial preferences can only end in disaster.

Desperate though he was to shore up South Carolina's Black vote in the Democratic presidential primary, playing identity politics with the open Supreme Court seat is terrible national politics.

According to a Rasmussen poll taken over the weekend, only 26% of Americans believe choosing a new justice by race and gender is a "good idea." Among independents, whose crucial swing votes were vitally important to Biden's campaign in 2020 and will remain vitally important in 2024, that figure falls to just 16 percent.

An ABC News/Ipsos poll shows that 76% of Americans believe that Biden should consider all eligible candidates, without restriction by race and gender.

Even absent these figures, filling the U.S. Supreme Court vacancy with a Black woman is a living, breathing case of reductio ad absurdum so extreme that it would be hilarious if our society had not been terrorized out of laughing about racial matters.

Only five individuals credibly fit both of Biden's desired characteristics, hold the Circuit Court judicial posts from which Supreme Court justices are normally chosen, and are below retirement age.

Three of them are believed to be in serious contention, but the fact remains that the overall pool of candidates for one of the most important positions in our government can literally be counted on one hand for no reasons other than "qualifications" not relating to their education, experience, or knowledge of the law.

Who cares about the content of their character?

Regardless of how qualified, how distinguished, and indeed even how progressive any other Circuit Court judge may be, the nation's future dispenser of justice can only be one of five pre-selected Black females.

That sounds like a weird ancient ritual practiced in some borderland of the Roman Empire, but the consequences are all too modern.

If Biden were hiring for a job, he would be in violation of federal civil rights laws and liable to administrative sanction and legal remedy.

No other minorities need apply. As the legal scholar Ilya Shapiro has unfortunately discovered, even suggesting that a more qualified progressive minority judge might be preferable to a "lesser" female jurist of greater pigmentation can have serious professional consequences.

Shapiro, who made that observation on Twitter last week, was due to join Georgetown University's Law Center on Feb. 1. Even though he twice apologized and deleted his tweets, he is now starting his new job on administrative leave and under investigation amid condemnation as a racist and demands that his contract be withdrawn.

In the process, he has become the latest cause célèbre among conservative, libertarian and non-woke liberals, who are accusing Georgetown of hypocritically betraying its own voluble commitment to free speech.

It is unlikely that Shapiro will ever again have a normal legal or academic career, but the Supreme Court appointment that he will probably be punished for having criticized offers Senate Republicans a highly visible national platform for exposing the administration's commitment to racist and sexist priorities.

Even if they cannot stop the confirmation, the arguments for opposing it clearly resonate with a large majority of Americans and to Biden's considerable detriment.

Last November they were essential in Virginia's off-year gubernatorial election, and have been recasting state laws, local governments, and district school committees ever since.

This November, the 13 Democratic senators seeking reelection will have to defend their decision to confirm a U.S. Supreme Court justice on those widely rejected principles in a year that no one expects will go well for Democrats anywhere, and in which Republicans need to flip only one seat to take the majority.

Biden's fixation on a Black female nominee will do nothing to save him, his decaying party, or their morally bankrupt racial ideology, but it will do them considerable harm. In those circumstances, the best decision would be to do what better presidents have long done and what three-quarters of Americans now want him to do: appoint the most qualified person, regardless of race or gender.

Paul du Quenoy is president of the Palm Beach Freedom Institute. He holds a Ph.D. in history from Georgetown University. Read more — Here.

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Biden's fixation on a Black female nominee will do nothing to save him, his decaying party, or their morally bankrupt racial ideology, but it will do them considerable harm.
supreme court vacancy
Wednesday, 02 February 2022 10:35 AM
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