Voters Don’t Like Supreme Court Set-Aside

Paul has argued here and here that Senate Republicans should feel free to oppose Joe Biden’s nominee to replace Stephen Breyer on the merits, in part because most voters don’t like the idea of a “set aside” Supreme Court seat that is available only to, in this case, black women.

This poll, reported today by Rasmussen Reports, supports that conclusion:

[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.

These numbers are consistent with surveys (and elections) that we have seen many times. Most people don’t like the racial spoils system that is fundamental to Democratic politics.

Of course, core Democratic constituencies, like universities, see it differently. Thus the current controversy at Georgetown Law School, where new faculty member Ilya Shapiro got in trouble for tweeting about Breyer’s replacement:

“Objectively best pick for Biden is Sri Srinivasan, who is solid [progressive] and [very] smart,” Shapiro tweeted. “Even has identity politics benefit of being first Asian (Indian) American. But alas doesn’t fit into last intersectionality hierarchy so we’ll get lesser black woman. Thank heaven for small favors?”

In a follow-up tweet, Shapiro wrote, “Because Biden said he’s only consider [sic] black women for SCOTUS, his nominee will always have an asterisk attached. Fitting that the Court takes up affirmative action next term.”

I see nothing wrong with these comments, although one might say, as Shapiro later did, that they were “inartful.” But they brought down the wrath of Georgetown’s administration on Shapiro’s head:

In a letter to the Georgetown law school community reported by Reuters, Dean and executive vice president of Georgetown University Law Center Bill Treanor condemned Shapiro’s Twitter thread, writing, “The tweets’ suggestion that the best Supreme Court nominee could not be a Black woman and their use of demeaning language are appalling.”

“The Tweets are at odds with everything we stand for at Georgetown Law and are damaging to the culture of equity and inclusion that Georgetown Law is building every day,” Treanor wrote.

Notice Dean Treanor’s logical error. Shapiro did not say that “the best Supreme Court nominee could not be a black woman.” Rather, it is Joe Biden’s selection process that–by limiting his search only to black women–implies that he not looking for the best candidate overall, but only the best candidate within an extremely limited demographic.

As usual in an academic environment, Shapiro had to recant. But the episode is revealing as it relates to Democratic precincts like Georgetown Law School. Shapiro’s statement that a black woman who is nominated to the Supreme Court after Biden declared his intention to nominate a black woman, and only a black woman, will therefore “always have an asterisk attached,” is true. That is the inevitable consequence of affirmative action. But what is true cannot, in Georgetown’s environment, be said.

An irony here is that Biden could have avoided this problem by simply appointing a black woman. No one would have questioned her appointment on that ground. He created the issue by announcing in advance that his search would be limited to black women. So why did he do something so seemingly foolish? Because, according to news reports, he had to make the pledge to obtain James Clyburn’s support in the 2020 presidential nomination race.

It is no wonder if voters conclude that Biden’s selection, whoever it turns out to be, is the result more of politics than of merit.