Lindsey Graham is confused about affirmative action

Sen. Lindsey Graham has long believed that a president’s judicial nominees should receive great deference from the Senate. He has made this clear over and over, both for nominees of Democrats and nominees of Republicans. For example, he defended his vote to confirm Justice Sotomayor on that basis.

Graham’s view on the matter used to be shared by the vast majority of Senators. Today, almost no Senator really holds it, not when the nominee is a member of the opposite party.

My view is that with Democrats constantly voting against well-qualified conservative nominees, Republicans should routinely vote against liberal nominees, regardless of qualification. But Graham doesn’t see it that way. I give him credit for standing by his principles.

However, giving deference to the president doesn’t require making bad arguments on his behalf. If you want to vote for a nominee, just say the nominee is qualified and cast the “yes” vote.

Lindsey Graham has never been a minimalist, though. He likes to preen and pontificate, and that’s what he’s doing now regarding the impending nomination by Joe Biden of a black female Supreme Court Justice.

For example, Graham insists that setting aside a Supreme Court slot for a black female is not affirmative action. He states:

Put me in the camp of making sure the court and other institutions look like America. You know, we make a real effort as Republicans to recruit women and people of color to make the party look more like America.

Affirmative action is picking somebody not as well qualified for past wrongs.

But picking people for jobs to make an organization “look more like America” is a form of affirmative action. More importantly, it’s a form of race discrimination because it entails favoring one candidate over another out of a desire to achieve racial balance — i.e., because of race. And when, as in Biden’s case, people of certain races are excluded from even being considered for the job, the affirmative action is a particularly egregious form of race discrimination.

I’m not sure what Graham means by his statement that “affirmative action is picking somebody not as well qualified for past wrongs.” It’s true that rejecting a white or Asian candidate in favor of a less qualified black candidate to atone for “past wrongs” is a form of affirmative action. But it’s not the only form.

The motive for favoring someone due to race — be it atoning for past wrongs, making a workforce “look like America,” or something else — has no bearing on whether the favoritism is affirmative action. It’s affirmative action, regardless.

“Picking someone not as qualified” because of her race is affirmative action, but so is refusing even to consider the qualifications of candidates of certain races and a certain gender. That’s what Biden has decided to do.

Graham made his comment in the course of touting a black South Carolina judge — J. Michelle Childs — who reportedly is under consideration for the Supreme Court. Graham is indulging in home state boosterism. He probably figures Biden’s black female nominee will be confirmed, and the spot might as well go to a South Carolinian.

Childs’ qualifications don’t leap off the page. She is a district court judge, not a U.S. court of appeals judge, like all current Supreme Court members other than Justice Kagan were before they joined the Court. She lacks Kagan’s stellar background as an academic and high-ranking Justice Department lawyer.

I see no credible argument that Childs is as qualified as, say, Sri Srinivasan. But Srinivasan has been ruled out because of his race and gender. He’s an Asian-American male, not a black female. As an Asian-American, his nomination would be “historic,” but that’s not the history Biden promised to make when he was hunting the endorsement of black politicians and leftists.

I don’t know whether the Childs boomlet will lead to her nomination, but if it does she will definitely be an affirmative action nominee.