The politics of replacing Breyer, Part Two

The Washington Post continues to maintain that Joe Biden has Republicans right where he wants them, thanks to his decision to appoint a black women to the Supreme Court. This article by Mike DeBonis is called (in the paper edition) “Supreme Court battle puts Republicans on the spot.” Dan Balz’s article is called “Breyer’s retirement gives Biden a fresh opportunity for a badly needed victory.”

But I continue to believe that, if anything, the political considerations here probably favor the GOP. A close reading of today’s Post supplies me with evidence.

For example, the big frontpage headline in the paper reads “Biden pledges to pick ‘a historic candidate.'” Notice that Biden isn’t saying “black female candidate” or “diverse candidate.” “Diverse” once was a useful euphemism, but no longer. Thus, the pick needs to be characterized as “historic.”

This packaging isn’t likely to fool anyone. It doesn’t obscure the fact that Biden has set aside a Supreme Court slot for a black female, thereby ruling out the vast majority of highly qualified candidates, including some Asian-American candidates whose credentials leap off the page (see below for one of them). This form of discrimination is unpopular.

Selecting an Asian-American candidate would be even more “historic” than selecting a black female. The Court already has a black Justice (and had another one before him). It already has three women. It has never had an Asian-American.

But Biden isn’t interested in being historic. He’s concerned only with accommodating his identity politics-driven base. Everyone understands this. On balance, I don’t see a political advantage in it.

Today’s Post also presents this op-ed by Ruth Marcus, the paper’s deputy editorial page editor, who frequently writes about the Supreme Court. Her article is defensive about Biden’s decision to announce in advance that he will nominate a black woman.

Marcus says she would have been “more comfortable if Biden hadn’t been quite so explicit” about setting aside a Supreme Court slot for a black female. Why? Partly because it “carries an aura of unfairness to announce that no one will be considered who does not meet an announced racial [and gender, she might have added] test.”

If Biden’s conduct carries “an aura of unfairness” in Marcus’ estimation, imagine how it will strike non-leftists.

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.

Marcus thinks such criticism is unfair. She says Ronald Reagan promised to nominate a female Supreme Court Justice. I say Reagan’s resulting decision to nominate Sandra Day O’Connor was one of the biggest mistakes of his presidency.

Marcus also cites the qualifications of two of the black female candidates reportedly among the leading contenders for the nomination. Their credentials aren’t meager, but neither are they as impressive as those of Sri Srinivasan, for example.

Among the credentials Marcus cites are graduation from Harvard and Harvard Law School in one case and from Harvard and Yale Law School in the other. Great. But were any of these admissions decision race based? Were any of the subsequent hiring decisions that advanced the careers of these two?

I’d love to know the answers, but, presumably, never will. It may be off-limits to ask, but I think we’re still allowed to wonder.

This brings me back to DeBonis’ article, which speculates about the approach Senate Republicans will take in considering whichever black female Biden selects. Clearly, the approach will depend to some extent on the nominee.

However, the most plausible path DeBonis describes is the one Democrats chose during Amy Coney Barrett’s confirmation:

While some had urged scrutiny of Barrett’s personal background as a member of a conservative Catholic sect, Senate Democrats kept their focus solely on Barrett’s record and her stated views on issues likely to come before the court, including abortion rights.

That approach would be fine with me. As I said yesterday, Republicans should abstain from advancing weak claims of personal misconduct.

Nor do Republicans need to highlight the fact that Biden’s decision is race/gender based. Biden, Senate Democrats, and their media allies will take care of that.

And calling the selection “historic” won’t make the decision go down any better with non-leftist Americans who care about the Supreme Court.

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