This week the Democratic National Committee gave Justice Steven Breyer the hook, announcing that he was retiring before he’d firmly decided to do so. When he finally responded, he made clear his intention to remain on the bench until Biden’s nominee was confirmed, which at best likely will be sometime this summer if ever. As part of a deal he made with congressman and House majority whip Jim Clyburn when he was on the ropes in the primaries, President Biden promised to nominate to this significant position a black woman, and three candidates’ names -- a weak bench if the suppositions are correct -- have been bandied about in the press. How odd to admit you are selecting a nominee on the basis of race and sex just as the Supreme Court is about to hear serious challenges to affirmative action in college admissions. Moreover, he asserts this will be an “historic” nomination, but it won’t be. (Picking an Asian-American would be.)

Neither will it be a popular one that will accrue to the benefit of his party, in my view. His supporters in academia and the press have an inkling of this which is why they are trying to tar and silence critics of this move right from the start. But Clyburn’s demand will make their usual tactics harder to succeed.

The Background

The Daily Mail reports how Clyburn strongarmed Biden, who was doing poorly in the Iowa caucuses and the New Hampshire primaries and was desperate for a win in South Carolina. Clyburn said he’d endorse him only if Biden would publicly pledge to place a black woman on the court if there were an opening during his term as president. Reports by Jonathan Allen and Amie Parnes show how insistent Clyburn was on this score, quoting him saying during a break in the Democratic debate, ”Look, I told you that I wanted you to say that you were going to name a black woman to the Supreme Court. You haven’t done it yet. You’ve had a bunch of opportunities. Don’t you dare leave this stage without doing it.” 

Has the DNC Miscalculated the Benefit of this Nomination to the Party?

There’s no doubt in my mind that the DNC imagines such a nomination will prove advantageous to its faltering chances in the November midterms. I agree with Paul Mirengoff at Powerline, who takes a contrary view.  He thinks while it might energize some Democrats, it will also energize Republicans. If the DNC gets its wish for a quick confirmation, that will occur too far in advance to have much effect on the midterms, and likely to be overshadowed by events. If they fail to get a confirmation, the Clyburn Democrats will be unhappy and the Republicans will have scored a victory against race discrimination.

In any event, he argues that Americans dislike race/gender-based hiring decisions. The latest Rasmussen Reports poll confirms Mirengoff. 

“[O]nly 26% of voters think it’s a good idea to make race and gender the basis of choosing appointments to the Supreme Court. Sixty-one percent (61%) believe picking justices on the basis of race and gender is a bad idea. Another 14% are not sure.”

Some surely fear that to contest such a nominee will be bad politics, that the Democrats will argue any objection will be racist and sexist. Others want payback for the Kavanaugh hearing outrage, where Democrats tarred the nominee with factually unsupported charges of youthful wrongdoing. Mirengoff disagrees, and so do I. I think the Republicans should challenge the nominee strictly on her record and views on the issues, and the Republicans have a strong and popular case to make if that record does not stand up to scrutiny. Biden’s limitation of whom he would consider is a “set aside which excludes people from even being considered for a position because (in this case) they are (1) non-black and (2) male. This is the most blatant form of race/gender discrimination. Even those awful Supreme Court decisions that uphold race-discrimination in college admissions denounce the practice of openly setting aside slots for members of particular racial groups.” It’s time for the Republicans to stop ducking every time the Left pawns off a person or program and claims any opposition is racist. 

You may ask why the approach the President took was not less blatant: Why didn’t he make no such promise to be discriminatory and simply nominate a black woman jurist. Well, I’ve already told you -- Clyburn made him do it, and Biden desperately needed his support in a critical primary.

Here the Left Goes Again

Even the marvelous Babylon Bee could not parody the left better than the Washington Post parodies itself. Under this header “The carping over the Biden’s Supreme Court pledge is historically inaccurate and racially tinged,” Ruth Marcus, the paper’s deputy editorial page editor, elicits ridicule.  She concedes she would be more comfortable if Biden had not been so explicit about limiting his selection to a black female because it “carries an aura of unfairness to announce that no one will be considered” who does not meet this test. Yes, it will, and it will even more so to those less blinkered who live outside the press rooms and academia.

Marcus is also less than fully comfortable because Biden’s announcement opens the door to criticizing the nominee’s credentials compared to others ruled out due to their race and/ or gender. Yes, it does.

The Wall Street Journal editors joined Mirengoff in noting the absurdity of Marcus’ arguments about racially tinged criticism of the President’s selection process:

"Racially tinged?” We guess that’s what you write if you want to accuse someone of racism but know it would be a canard to say so.  [snip] But the racial tinge was applied by Mr. Biden in his criteria for his judicial selection. Is it taboo to comment on the use of a racial litmus test that a President has himself made explicit?

The hilarious part is that, after she lambastes [Ed: critics of the process], Ms. Marcus ends up agreeing with most of our point. “Would I be more comfortable if Biden hadn’t been quite so explicit? Yes. Partly because it carries an aura of unfairness to announce that no one will be considered who does not meet an announced racial test,” she writes.

So it’s okay to use a racial test for judges as long as it’s not explicit, but anyone other than Ruth Marcus who criticizes the explicit racial test is “racially tinged.” What she’s really saying is that conservatives are right in their criticism but only liberals can say so. [snip]  Mr. Biden and his allies can’t say he’s choosing a nominee explicitly on the basis of race and then try to intimidate critics by claiming any criticism of the nominee is racist – or “racially tinged.” The Court and the public deserve a robust debate about the nominee, whether black, white, Asian, man, woman, whatever.

Too often, Republicans have lacked the spine to call the Democrats out on their racialist policies. This time, Congressman Clyburn has made the job easier by demanding and getting the president to make the party’s racism blatantly explicit. Biden’s defenders have such an absurdly weak case, they humiliate themselves in the effort.

Image courtesy Michael Ramirez