Wow, that was fast. This episode has turned into an ethics train wreck with record speed. Some ethics train wrecks slow down and stop after a few months; other roll on seemingly forever. The Trayvon Martin-George Zimmerman Ethics Train Wreck, which has included directly-related wrecks like the Ferguson Ethics Train Wreck and the George Floyd Ethics Train Wreck, is almost nine years old, and won’t stop until Black Lives Matter lies a-moldering in the grave. The 2016 Presidential Election Ethics Train Wreck is still going strong, with the Jan. 6 riot and the subsequent kangaroo court investigation in the House the latest cars to be hooked up. The Biden Supreme Court Ethics Train Wreck? At this point, where it stops, nobody knows.
It began before it was even certain Biden would get a SCOTUS nomination, when he first promised to name a black woman to the Court. That promise, which he quickly confirmed once Justice Breyer announced his retirement, was unethical “on its face,” as the Court might say. The statement means, and can only mean, that group identification is the primary priority for the President of the United Sates in nominating a crucial individual who will help determine the course of the nation’s laws, justice system, constitutional integrity and culture for decades to come. That function has nothing whatsoever to do with race or gender. Nothing. Being black, white, Native American or Asian does not make an individual more or less qualified for the job, and neither does gender. Biden’s statement literally means that he is placing tribalism and group identification biases above the substantive needs of the nation. That’s unethical. Other Presidents have done this, notably Ronald Reagan and George H.W. Bush. That’s no mitigation.
Of course, Joe Biden has already proved that he regards pandering to group identification lobbies as more important than choosing the individuals for key jobs most likely to serve the nation and the public most effectively. He chose Kamala Harris as his VP for no other reason than her skin shade and lady parts…and hasn’t that worked out well!
It should be amazing—but it’s not—that no non-conservative voices in the news media will come right out and say how damaging such open and unapologetic affirmative action is. The mainstream media has simply adopted the Left’s fiction, now reaching the level of cant, that “diversity” is always the most important factor, even when it can’t possibly be. So the MSM has instantly joined the train.
Biden, meanwhile, has another ethics breach to atone for in this early ETW. He snottily announced that having a black woman on the Court was “overdue,” but one reason it has taken this long is a relative dearth of a sufficiently deep candidate pool. Joe contributed to that, though so far no one but conservative pundits have raised that fact. In 2003—that’s not that long ago—President George W. Bush nominated Janice Rogers Brown, an associate justice on the California Supreme Court to serve as a Judge on the United States Court of Appeals for the District of Columbia Circuit. She was the first black woman nominated for the federal bench., and the federal bench is where the vast majority of SCOTUS justices come from. Sen. Joe Biden filibustered against her nomination and voted twice against her. When Biden first had the chance to vote for a black woman on the federal judiciary, he refused. He refused to deepen the pool. It is fine for him to say that he has changed his ways, but he may not pretend that he was not among the forces that helped keep the Supreme Court from being more diverse. Won’t some journalist have the guts to question the President (or his paid liar, Psaki) about this?
Then commentators, pundits and analysts have botched their response to the impending “first.” Constitutional law scholar and conservative Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies, and publisher of the Cato Supreme Court Review, tweeted,
Gah! What Shapiro was obviously trying to say was that Sirinivasen is a superior minority candidate to all potential black female possibilities, so eliminating her purely because of her race was “racist,” but also a gift to conservatives because a lesser justice will have less impact on the court. But to those inclined to use the obligatory racist accusation on Shapiro, the phrase “lesser black woman” was quickly interpreted as meaning that Shapiro felt that black judges were inherently inferior.
Yes, I believe reading the tweet as impugning black women is unethical intentional sliming, and, as usual, the on-line legal gossip rag “Beyond the Law” led the way. (The same website once claimed that I was sexist.) It was amusing watching it try to twist Biden’s purely race and gender based decision that eliminates all qualified men and whites as somehow not pure discrimination. Here’s a bit of it:
White folks have been benefiting from affirmative action for centuries. Of the 115 SCOTUS justices we’ve had since inception, seven of them have not been white men. Given that the decision to nominate a Black woman comes after centuries of white maleness being a requirement to don the robes, it reeks of bad faith to say that decisions ought be made without regard to identity when done in the name of equity….We really couldn’t make it one day before some dude pits the minorities against each other, Oppression Olympics style?
Cool distortions, there, ABTL, but then you practice the tactic so often.. There were no black or female judges for most of those “centuries,” and virtually no female of black lawyers or professors until the 20th Century, so no “affirmative action” was involved in choosing white males for SCOTUS; there were no qualified alternatives. And it is Biden who is “pitting minorities against each other by deciding that one is more deserving of special bias than another
Then Georgetown Law Center’s dean publically attacked Shapiro, who works there, virtue-signaling a rebuke, taking his lead from GULC alums, who tweeted things like…
“I hate to draw attention to this troll because attention is what he craves. But now that @GeorgetownLaw has hired him, I feel an obligation to condemn his overt and nauseating racism, which has been a matter of public record for some time. I am deeply ashamed of my alma mater.”
…Your hood just slipped a bit more this time around. You think anyone who’s not a white man is ‘lesser than’.
Trainor does this frequently: he doesn’t defend open debate and controversial opinions, he condemns them when they buck the progressive line, and, if he can, punishes them.
Then Shapiro himself hooked up to the wreck (in addition to the foolishness of using Twitter to express an opinion requiring clarity and nuance) by groveling:
I apologize. I meant no offense, but it was an inartful tweet. I have taken it down.
Coward. All tweets are by definition inartful, and his obligation was to clarify his meaning, not to apologize for “offending” a group whose definition of “offense” is not falling into lockstep with its edicts.
And Biden hasn’t even nominated anyone yet!
Here is one analyst’s guesses regarding which color-and-gender qualified candidate he might choose: it’s Above the Law’s founder David Lat, who does a pretty good job.
9 thoughts on “The Biden Supreme Court Pick Ethics Train Wreck”
I want to ask this question to the lawyers. Is Biden’s declaration that he will limit the pool of nominees to only Black women any different than another employer saying they will only hire white men? Why isn’t this prima facie evidence of employment discrimination based on race?
Where is it written that every event, occupation, or activity must have adequate representation by some demographic group – ideally in proportion to their percentage in society – in order to achieve equity? Doesn’t equity or fairness require all persons to be evaluated based on their own qualifications?
I am waiting for someone to file an EEOC claim because they were excluded from consideration for the SCOTUS vacancy based on their race. It will never happen.
By limiting the potential pool on physical attributes is a slap in the face. It implies they can’t make it through with everyone so you need to be treated “special”. We’ve seen it with college admissions and this is particularly awful. They’ll know they shouldn’t be there and everyone else does too, because the qualifier was skin and lady parts and a left leaning bias. Not competency. Not even “who you know”. This will make them ineffective at their job and if these women have any morals at all they’ll wholesale tell him no and to open the pool. They can get there without a “good ol white boy” *wink, wink* helping them up to the court position or they don’t deserve it. This appointment is, as you say, signature significance. Anyone who takes it will be seen as exactly what they will have to be. A political plaything. It will hamstring them from being truly great, even if they could be.
A little mitigating perspective? How could the black female pick be any worse than Sonya Sotomayor, the wise Latina?
Do you really want to put that question to the test, with the future of this nation on the line? Maybe right now it isn’t that big of a deal, since the conservatives hold a strong majority, but that could change very quickly. Also, for the last few years the left has been doing its best to tarnish the court’s reputation, saying it has become too political. Add an obvious affirmative action hire, and THEY will be the ones who push it past the line of being too political, probably for good.
Just because it’s been done before, doesn’t mean it should be done again and she is a perfect example of why it should never, ever be done. That pool of qualified people is limited already, no need to further limit it based on appearances and hamstring their ability to be taken seriously because everyone knows they’re nothing but a token pick obligated to the party that put them there. It’s like choosing your nephew for the job. There’s movies about this and it usually sucks for everyone unless they’re actually qualified, and I know it happens, but that doesn’t mean it should happen.
Harris would be worse. Michelle Obama would be worse. Sen. Jackson Lee would be worse. Loretta Lynch would be worse.
Yikes. I was assuming they were at least going to nominate a federal judge of one sort or another.
Remember: Kagan had no judging experience.
I’d forgotten. Lots of clerking, though.