Biden didn’t invent affirmative action for the Supreme Court

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President Biden hasn’t named his pick to fill Stephen Breyer’s vacancy on the Supreme Court, but the first major argument against her has already emerged: She’s the unqualified product of affirmative action.

“Biden recklessly limited his options by preemptively declaring during the 2020 campaign that his first Supreme Court nominee would be a black woman,” op-eds National exam. “All at once he disqualified dozens of liberal and progressive jurists for no reason other than their race and gender. It’s not a good start to pick someone who’s sworn to do equal justice under the law. .

The Wall Street Journal Editorial page giggles, “Sir. Biden’s campaign promise to nominate a black woman to the Supreme Court is unfortunate because it elevates skin color above qualifications. Cato’s Ilya Shapiro complained, before deleting the tweet, ” Because Biden said he only considers black women for SCOTUS, his nominee will always have an asterisk attached.” Even cruder versions of the same basic idea are already coming from people like Tucker Carlson.

Somehow, the idea has taken hold that before Biden came along and removed the standards, Supreme Court appointments were made solely on the basis of merit. The choice would go to the most competent and accomplished jurist in the country, such as a law review editor for the entire judicial system.

But when exactly did this era exist? Was it before 1967, when the most qualified judges were all white men? No, it was widely believed that there was a “Jewish seat” and a “Catholic seat” at Court for decades during this period.

The base of identity representation on the Court broadened after the 1960s. Ronald Reagan promised during his 1980 campaign to appoint a woman to the Supreme Court. George HW Bush did not openly say he needed a black lawyer to replace Thurgood Marshall, but it would take heroic levels of delusion to believe that Clarence Thomas was selected on the basis of his professional accomplishments.

During this time, age was openly discussed as a crucial factor in the selection of judges. Unlike race and gender, which are not related to quality, age is a trait that directly opposes it. Neither side would choose a candidate over 60, even though the most accomplished judges by definition have honed their craft long ago.

The absurd actuarial logic of lifetime appointments incentivizes both sides to find the youngest candidate possible who can plausibly be sold to the public as having passed the qualifying bar. If you were really concerned about the qualifications of Supreme Court justices, reforming the system by ending life tenure would be a high priority. But the energy of the right has been focused on pushing back any reform of the system – it has won the game and does not want to change the rules.

In any case, neither party ever believed that a seat on the Supreme Court rightly went to the world’s greatest super-genius. They both believed that a certain level of qualification is required and that, having crossed this threshold, the identity traits of the candidate are a valid reason to select him.

Donald Trump proudly noted that Amy Coney Barrett – chosen over many other qualified right-wing justices – would be the first mother to serve on the Supreme Court. “At 46, she is the youngest of the top five picks, which is a mark in her favor given that the nominee will be appointed for life and Trump will want one who will leave a lasting mark on the law,” said . National exam editor Ramesh Ponnuru before his appointment. Ponnuru added that Barrett’s non-Ivy League pedigree “would add some welcome diversity to a Supreme Court full of Yale and Harvard alumni.”

He went on to say, “The main reason I prefer Barrett, though, is the most obvious one: she’s a woman.”

And now we learn that Biden has compromised not just the quality of the court’s legal character, but the very principle of “equality before the law” by promising to appoint the first black woman to the court. It’s enough to make you wonder if the conservative notion of equal justice under the law is equal at all.


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