“Mr. Biden is now going to create one of the more jarring and incongruous moments in the history of the Supreme Court. This fall, in the Harvard and University of North Carolina cases, the justices will hear arguments that the use of race in admissions is unlawful discrimination. One of them will have gained her seat in part through exclusionary criteria of race and sex.” Jonathan Turley
When Supreme Court Justice Stephen Breyer retirement was leaked by leftist activists in order to force the issue, President Biden was immediately confronted by demands to honor his pledge during the 2020 presidential campaign to appoint a black female to his first vacancy on the Supreme Court. When Republicans objected that this race and gender litmus test is unconstitutional, many of the Left replied that Biden is simply doing what Ronald Reagan did when he promised to appoint a woman to the court and later appointed Sandra Day O’Connor to the court in 1981. If one follows leftist “logic,” if Reagan violated the constitution, we can too.
In fact, as Jonathan Turley has argued, what Biden has pledged to do is the opposite of what Reagan did. The key Supreme Court decision is the 1977 University of California vs Bakke ruling that “preferring members of any one group for no other reason than race or ethnic origin is discrimination for its own sake” which is forbidden by the Constitution. Biden’s pledge violates that ruling, Reagan’s process does not. 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.”
Later, when the first vacancy arose, Reagan’s aides told the news media that there is no “guarantee” it will be a woman and, in fact, Reagan considered men for the position, including Robert Bork, Dallin H. Oaks, Malcolm Wilkey, Philip B. Kurland, Edwin Meese III, and African-American trial court judge Lawrence Pierce. This is consistent with Supreme Court rulings concerning university hirings that one may use race and gender as one factor in the hiring decision but may not base one’s decision exclusively on race or gender. By contrast, Biden’s statement that the nominee for the Breyer replacement would definitely be a black woman would not be legal if one was hiring an instructor at a university.
Commentators have also claimed that Donald Trump did the same as Biden when he nominated Amy Coney Barrett. This is also loose thinking. Trump had already released a list that included both male and female candidates and begun evaluating them. Further his final shortlist for the position included both Barrett and several male jurists. Neither Reagan nor Trump restricted themselves exclusively to any particular demographic.
Another major difference is that since women comprise about 52% of the population
Reagan’s statement that he wanted to appoint a woman to the court simply acknowledged the virtual mathematical certainty that a top candidate could be found in that large untapped resource. That is if one actually believes that males and females are equal in the relevant respects, as opposed to repeating this as a mantra for political advantage, and if no woman had been appointed to the court before, then one must infer that it is quite likely that some of the best candidates for one of the upcoming Reagan appointments can be found among that 52% majority of the population.
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By contrast, since black women constitute only about 7% of the population, there is no statistical probability that the best candidate can be found in roughly one-fifteenth of the population. The smaller one makes the pool of possible candidates, the smaller the probability the best candidate can be found in that demographic. By limiting his nomination to this fraction of the population Biden is deliberately discriminating against 93% of the citizenry.
Suppose, for example, a future president said that since we have never had a male-to-female transgender Supreme Court justice, well-under 1% of the population, he or she pledges to consider nominees only from that group. If a president were so misguided to make such an exclusive commitment, female-to-male transgendered persons would have every right to reply, “What about me? Are not persons like myself, female-to-male transgender persons, equally deserving of being considered?”
This is an extreme example, but it illustrates the problems when a president commits to selecting a nominee from a particular demographic, a problem that only becomes more evident when that demographic is very small. In response to Biden’s discriminatory pledge, should not black males, just like every other demographic in the country, including Asian males and females and white males and females ask the same question to Biden, “Are people like myself not deserving of receiving equal consideration for the position?”
Furthermore, by stating that he will only fill a particular position by someone from one approximately fifteenth of the population, he has already tainted that nominee, whoever she may be. Once again, Biden’s bungling, his determination to pander to a particular demographic that is so important to the Democrat party (its most loyal voting group), will have the opposite effect to the one desired. Instead of honoring black women, the eventual nominee, whoever she may be, will, whether this is fair or not, forever be tainted as Joe’s affirmative action candidate. Given Biden’s transparent pandering, this is already inevitable, even if the eventual nominee is highly qualified. It is not possible to unring the bell.
In addition, the fact that cases involving race and gender preferences will come before the court during her tenure will raise questions about the legitimacy of the court that would not arise if Biden had followed proper procedures. For example, will the Biden Nominee have to recuse herself during the upcoming Harvard and University of North Carolina cases and other race-and-gender discrimination cases that come before the court in future?
This may be why, according to a Jan. 30, 2022 ABC News/Ipsos poll, 76 percent of Americans, and even 54% of Democrats, want Biden to consider “all possible nominees” while only 23 percent want him to keep his pledge to nominate only a black woman – and even among non-white Americans, only 28% want Biden to limit himself to a black woman. The American people, unlike Joe Biden and controlling forces in the “Democrat” Party, still believe in a colorblind America. That is what the “Democrat Party,” back in our old-fashioned non-racist days, used to say it wanted, isn’t it?
Biden does not understand the principle of non-discrimination. It does not appear that he wants to understand it. A “principle” is not a weapon to be used arbitrarily in order to get the political result du jour one wants. It is a rule to be applied fairly to all American citizens on each and every occasion. That is what it means to be a “principle”. Remember Joe?
By Richard McDonough
Richard Michael McDonough, American philosophy educator. Achievements include production of original interpretation of Wittgenstein’s logical-metaphysical system, original application Kantian Copernican Revolution to philosophy of language; significant interdisciplinary work logic, linguistics, psychology & philosophy. Member Australasian Debating Federation (honorary life, adjudicator since 1991), Phi Kappa Phi. Richard is a regular contributor to The Blue State Conservative.
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