January 26, 2022

"Oh? I'd forgotten that he'd pledged to choose a black woman. Isn't that inconsistent with his 3 reasons for not giving us a list?"

"There can't be that many potential choices if he's got the type of person narrowed down like that. Who are the under-60 black female federal judges appointed by Democratic Presidents? Won't they all be influenced in their decisions — reason #1, [below] — even though their names are not on a list? Aren't they all just as vulnerable to 'unrelenting political attacks' as the individuals on Trump's list (reason #2)? And are you not violating reason #3 by making this pledge? You are trying to gain favor in a partisan election campaign, and when it's over, you'll be locked into that limitation and not able to make the sober, nonpolitical analysis you want us to think you will make. And isn't your pledge to appoint a black woman — just a black woman, not the person with the greatest skill and integrity — more political than Trump's list of real people, whose skill and integrity we can investigate?"

I blogged on September 20, 2020, after Biden gave 3 reasons why he would not, like Trump, give voters a list from which he'd choose his Supreme Court nominees.

The 3 reasons were:

1. "[P]utting a judge’s name on a list like that could influence that person’s decision making as a judge, and that would be wrong, or at least create the perception that it would have influence."

2. "[A]nyone put on a list like that under these circumstances will be subject to unrelenting political attacks."

3. "[I]f I win, I’ll make my choice for the Supreme Court not based on a partisan election campaign, but on what prior presidents have done.... [A]fter consulting Democrats and Republicans in the United States Senate and seeking their advice and asking for the consent... ... I’ll consult with senators in both parties about that pick, as well as the legal and civil leaders in our country...."

86 comments:

What's emanating from your penumbra said...

In all fairness, by the time he got to reason #3, he had forgotten #1 and accidentally had a #2.

Scot said...

0. Because Trump did it.

Skeptical Voter said...

Well we will no doubt get a wise Black woman. That choice of color and sex does sorta limit the pool from which Biden can choose. so we might not get the best possible candidate. And Biden's earlier choice of a Black woman for Vice President led to less than beneficial results.

Peter Spieker said...

I don't think Trump committed himself to naming a person from his list. I remember the list as being subject to future revision. Biden seems to have made a categorical pledge.

gspencer said...

Every potential choice will have been - and of course continuing - a beneficiary of AA.

All the boxes will have been checked except the one marked "Bright and intelligent."

Enigma said...

Clarence Thomas was widely disrespected upon his nomination -- he was treated as a cynical Republican "affirmative action" hire to replace Thurgood Marshall as also black. At least one cartoonist of the era depicted Thomas as a "small person" (dwarf?) unable to fill Marshall's judicial robe. Clarence Thomas then received poor treatment/blind-eye avoidance for the next decades, with no apparent irony or regret from the left.

This nomination will thereby reveal the self-awareness and cynicism of the left. I guess that a party line vote will be likely, with Sinema and Manchin again setting the minimum criteria for the nominees.

Lucien said...

Hey, what's Angela Davis doing these days? (Or Anita Hill, as "reparations")

Iman said...

Three words: Janice Rogers Brown

Joe Smith said...

How proud would you be knowing you were chosen for such a prestigious appointment based on the color of your skin.

And the left says they're not racist.

Soft bigotry, etc., etc...

Lance said...

Wikipedia purports to have a list of African-American federal judges. I have no idea of course how accurate it might be.

Curious George said...

"This Person said...
In all fairness, by the time he got to reason #3, he had forgotten #1 and accidentally had a #2."

Funny!

wendybar said...

"[I]f I win, I’ll make my choice for the Supreme Court not based on a partisan election campaign, but on what prior presidents have done.... [A]fter consulting Democrats and Republicans in the United States Senate and seeking their advice and asking for the consent... ... I’ll consult with senators in both parties about that pick, as well as the legal and civil leaders in our country...."


Bahahahhahahhahha. He will nominate a black female to appease the little progressive crybabies who will threaten to riot if he doesn't. Since WHEN has he consulted Repubicans about ANY of his decisions?

Carol said...

Streaming network news is showing four black female judges who are the likelies.

I didn't recognize any of them but no surprise.

narciso said...

which game of fizbin is ron klain playing, he runs the show,

rehajm said...

I’m imagining someone like the current batch of idiots effing things up. Someone who makes the wise latina look wise. Someone who makes life miserable at work.

rcocean said...

Does anyone with a brain, buy any of this bullshit anymore? The Democrat judges are POLITICAL actors. Their decisions almost always line up with their left-wing political beliefs. This has been true for 50 years. As a matter of fairness I think it should be a minority.

But God just stop with the pretense. I wonder if the center-right will EVER figure out the SCOTUS is an elite body that is tasked with advancing the Leftwing agenda. Instead, just give them 20 secondd, and they'll forget all the Leftwing policies that were put in place by judge made laws, and start babbling about the Federalist papers, "Balance of powers", and "We need Judges that interpet the constitution". The whole idea that these characters are reading the sacred text, and then deciding cases based on it, is childish and dumb.

Lance said...

Tiffany P. Cunningham is Black, female, AND she has a BS in Chemical Engineering from MIT.

Roy Jacobsen said...

Imagine the screaming from the usual suspects had Trump promised to choose a white male for SCOTUS.

And yet, somehow, changing it to "black woman" magically makes it a "Good Thing(TM)." What a crock.

tim maguire said...

#1: Because appellate judges don't think about their careers.

#2: Did that happen to the judges on Trump's list? I don't think so. Besides, that's not a proper concern for Biden. The public's right to know is more important than this speculative unpleasantness.

#3: The president's power to appoint judges is part of what the public considers when casting their vote. They have a right to know what kind of judges he thinks belong on the court.

Wa St Blogger said...

Another problem with an Affirm Act choice is that the candidate will forever be saddled with the reputation of being underqualified and undeserving. Heck of a hole to climb up out of. Still, it's got to be better than being pilloried as a rapist.

Now, there are probably solid people who are sufficiently qualified that happen to tick a few "boxes", but with the political reasons for the choice, their qualifications will be of little consequence.

Tom said...

Maybe we can trick Joe into nominating Candice Owens…

Or maybe he can nominate Anita Hill. That might add to our long national soap opera.

Lyle said...

Perfect time to kick Kamala Harris out of the executive branch and stick a BW on the SCOTUS.

Ancient Mariner said...

Janice Rogers Brown is a brilliant jurist who happens to be a black woman. Her nomination to the Supreme Court by, I think, Bush I was held up by Dems in the Senate. Biden is unlikely to nominate her, however, because (a) she is, by my estimation, over 70 now, and (b) she is, though far left in her youth, a born-again conservative now.

jaydub said...

Sure he'll consult with Republicans. Just like he always does.

Dave64 said...

Yikes! He chose Kamala for VP! Is Biden going to pick Cori Bush?!

Browndog said...

Disqualified.

An affirmative action nominee can not sit on the Court when it has affirmative action cases before it.

Ancient Mariner said...

Janice Rogers Brown is a brilliant jurist who happens to be a black woman. Her nomination to the Supreme Court by, I think, Bush I was held up by Dems in the Senate. Biden is unlikely to nominate her, however, because (a) she is, by my estimation, over 70 now, and (b) she is, though far left in her youth, a born-again conservative now.

Ancient Mariner said...

Janice Rogers Brown is a brilliant jurist who happens to be a black woman. Her nomination to the Supreme Court by, I think, Bush I was held up by Dems in the Senate. Biden is unlikely to nominate her, however, because (a) she is, by my estimation, over 70 now, and (b) she is, though far left in her youth, a born-again conservative now.

285exp said...

He couldn’t post a list because it would show how #3 was complete bull.

Left Bank of the Charles said...

Providing a list was incompatible with choosing a black woman, at the time Biden made that pledge. Supreme Court Justices are usually drawn from the Circuit Courts of Appeals, and the only black woman with a circuit judgeship who was appointed by Barack Obama is now age 70. The first four Biden appointees to circuit judgeships were black women, so now he has those four women with that resume, and a few others he could consider who lack it.

If Biden really wants to break new ground, he could nominate Tiffany P. Cunningham, a black woman who practiced law as a patent attorney before he put her on the Federal Circuit. Her confirmation vote was 63-33. That’s as bipartisan as it gets these days.

Browndog said...

Shannon Bream

Multiple sources tell me Justice Breyer was not planning to announce his retirement today. They describe him as "upset" with how this has played out. We still await any official notice from his office and/or the #SCOTUS public information office.


Susan Crabtree

Breyer is upset about the way this leaked out, sources close to SCOTUS tell me. Usually SCOTUS justices are allowed to announce their retirement on their own terms, as has occurred in the last three retirements. (see thread and timing, below)
This is very early in the yr./term


Did Justice Breyer announce his retirement today?

No, Ron klain did.

Spicey...

stutefish said...

Who are the under-60 black female federal judges appointed by Democratic Presidents?

The power move would be to nominate an under-60 black female federal judge appointed by a Republican President. (I assume there must be at least one.) (I also assume that, political theater aside, all federal judges are more or less on equal footing in terms of experience and general competence, and any one of them would be fit for service on the Supreme Court.)

Paul A. Mapes said...

There's at least one "black" woman lawyer who is an obvious candidate, although she has no judicial experience. But picking her as the nominee might actually increase the odds of Joe's presidency coming to a conclusion pursuant to the 25th Amendment. Since there are no other obvious candidates for the Breyer vacancy, the chances are that whichever of them is chosen will have some baggage that will endanger her confirmation or at least reduce its popularity.

mikee said...

So... Condoleeza Rice! At 67 she's a bit older than desired, but since she didn't get the gig as NFL Comissioner that she wanted, maybe she's available. And I think she'd do quite well.

YoungHegelian said...

I hear Aunt Jemima is looking for a new job.

~ Gordon Pasha said...

Megan Markle. Paralegal to top lawyer, expert in the common law, lots of name recognition

Michelle Dulak Thomson said...

What I have read about Tiffany Cunningham is actually quite positive. Biden could do a lot worse.

MIT is good enough, but a Chem.E. degree from MIT is spectacular.

narciso said...

dems vote against republican nominees no matter how qualified, gopes vote for dem nominees well above and beyond the margin,

Sebastian said...

"Won't they all be influenced in their decisions . . . And are you not violating reason #3 by making this pledge? . . . And isn't your pledge to appoint a black woman more political"

Progs care about the Constitution and about legal reasoning just as much as they care about answering your questions with any integrity.

Their reasons are tools. They need no other justification. The question is if they work. As long as the nice women of America just wring their hands on the sidelines--they are contradicting themselves! they are doing things just as bad! it's terrible!--they will.

Putting an actual black prog on the court outweighs any other consideration. It will be hailed as an achievement.

rhhardin said...

I suppose Judge Lance Ito is out.

The Vault Dweller said...

As a matter of principle I think the Democrats still need to publicly castigate and then excommunicate Senators Sinema and Manchin before any names are given for consideration.

Lance said...

How about Stephanie D. Davis? Trump appointed her to the District Court for Eastern Michigan in 2019. The Senate voted 90-1 for cloture on her nomination, and then approved her on a voice vote. So she clearly has bipartisan support!

FullMoon said...

We all concerned? Hows about Kamala SC, Pelosi VP, Biden retires, Pelosi prez, schumer vp,

And then: Schumer prez aoc vp and on and on..

Mark said...

Janice Rogers Brown is a brilliant jurist who happens to be a black woman. Her nomination to the Supreme Court by, I think, Bush I was held up by Dems in the Senate.

JRB was never nominated to the Supreme Court. She might have held up on a nomination to the court of appeals. However, she made it known that she did not want to be picked for the Supreme Court, precisely because she did not want to go through the malicious attacks upon her that would have been certain. She would have been great though.

(Let's just pretend I posted this three times)

Howard said...

Clarence Thomas couldn't be reached for comment.
Blogger Browndog said...

Disqualified.

An affirmative action nominee can not sit on the Court when it has affirmative action cases before it.

gadfly said...

mikee said...
So... Condoleezza Rice! At 67 she's a bit older than desired, but since she didn't get the gig as NFL Commissioner that she wanted, maybe she's available. And I think she'd do quite well.

Uhh, no way. Joe has to answer to the Progressives, so our former Secretary of State won't be nominated. Also - it will be difficult to get 60 votes for any nominee with a 50-50 senate.

So Biden's best bet is to sneak Leondra Kruger (age 45), an associate justice of the Supreme Court of California, into SCOTUS. She is the second African-American woman to serve on the California Court as justice in modern history and the fourth black person.

She is considered to be more likely than her Democratic colleagues to vote with Republican appointees due to her “inherently lawyerly caution,” avoiding sharp shifts in the law. Colleagues describe her as meticulous, hewing to the precise text of laws and ruling as narrowly as possible out of concern that a result in one case could have unintended consequences in another. However, she has leaned more to the left when it comes to certain issues such as dissenting on a majority decision upholding a death penalty - important to Biden who opposes death by court.

Josephbleau said...

“Breyer is upset about the way this leaked out, sources close to SCOTUS tell me. Usually SCOTUS justices are allowed to announce their retirement on their own terms, as has occurred in the last three retirements. (see thread and timing, below)
This is very early in the yr./term”

Is Klain a dick or does he have brain damage? He goes out of his way to piss everyone off. If I was Breyer I would tell Beiden the retirement is off until he shows klain the road.

Spiros said...

It's pretty obvious that whatever candidate Biden puts forward, journalists are going to discover disgusting, vile, stupid tweets about Asians and affirmative action, racist White people, killer cops and Israel (a.k.a "the Jews"). The confirmation proceedings are going to be very unpleasant.

Tina Trent said...

No, no, Angela Davis isn't a judge. She blew the head off a judge. And she was a university professor when she helped kill him.

Davis bought the weapon, smuggled it to the killers (others were shot too), and basically in return was given her own academic department at University of California, Santa Cruz. She also scores between 10K to 50K to deliver speeches at scores of other universities 'bout the revolution.

Judge Harold Haley. Remember his name. He died protecting the other hostages. That hag Davis bought the shotgun that killed him on August 5,1970. It was taped to the neck of Judge Haley two days later. The blast blew his head off and crippled a DA who later married one of Haley's daughters.

There's a minority group not represented on the Supreme Court: victims and survivors of heinous crimes. Hell, it isn't legal to exclude me from a jury if I had committed a crime, but it's perfectly legal to exclude me for being a victim of one.

Explains a lot.

Tina Trent said...
This comment has been removed by the author.
Warren Dorn said...

Is there another job out there that would allow a superior to state he / she will only hire ____ (fill in the blank of the preferred race and gender?) anyone else either gets sued or loses his / her job.

Ann Althouse said...

It's absurd to think it might be Kamala Harris.

Vance said...

Oddly, two justices of the Utah Supreme Court announced their retirement recently--one just two days ago. To "pursue other opportunities in the legal field."

I highly, HIGHLY doubt that Biden will nominate Justice Thomas Lee, but that would be unexpected, to say the least.

Lee is brilliant, the "brains" on the Utah Supreme Court, and was on Trump's short list. I'm frankly stunned he wanted to quit.

So I suppose there's a 1 in about 400,000 chance Biden is gonna nominate him and he gave everyone a heads up in a way.

Ha, no. I'm more likely to be nominated than Justice Lee....

Mr Wibble said...

Is Klain a dick or does he have brain damage? He goes out of his way to piss everyone off. If I was Breyer I would tell Beiden the retirement is off until he shows klain the road.

My theory is that he wanted to get this out now so that they have time to get everyone on board with the eventual nominee. If it was kept secret until the end of the court's term, then they'd go into the height of primaries with a big debate about who should be the nominee. The progressive activists are going to push hard for someone sufficiently left-wing, but Dems are going to be nervous about that, especially with Biden's unpopularity. I suspect that the Senate will want someone moderate enough to win a decent amount of bipartisan support.

Spiros said...

Biden should make history and choose a Native American. There are NO federal judges who self-identify as Native American. That's obnoxious, especially given their role in interpreting Indian law.

As for the females, the Democrats argue the different life experiences of women will lead to improved judicial decision-making and to a more representative judiciary. Yada, yada, yada. But do female judges actually decide cases in a different manner? I don't think so. But a lot of men secretly root for a female divorce court judge, so maybe there's something to it?

Bruce Hayden said...

“ If Biden really wants to break new ground, he could nominate Tiffany P. Cunningham, a black woman who practiced law as a patent attorney before he put her on the Federal Circuit. Her confirmation vote was 63-33. That’s as bipartisan as it gets these days.”

I like her already. Patent attorneys are, of course, the smartest, best looking, etc attorneys ever. Besides, Breyer is the only Justice with any real exposure to IP law (apparently, he practiced soft IP law, which is more than any of the others). In the last decade, there have been some really atrocious IP in general, and patent law in particular, decisions by the Supreme Court (I was involved in some of the amicus briefs). Breyer seemed like he almost even understood the arguments. The others very apparently did not.

Curious George said...

"Ann Althouse said...
It's absurd to think it might be Kamala Harris."

Until you realize who's doing the picking.

Bruce Hayden said...

“ It's absurd to think it might be Kamala Harris.”

Dems can’t afford it. I don’t think that she is as weak as Sotomayer, but that doesn’t say much. That was, of course, the price Dems pay for Affirmative Action hirings. But the minute Harris resigns as VP, the Senate would grind to a halt until the next election, including for her replacement. Esp for her replacement. Her tie breaking vote is absolutely critical for the Dems getting anything done in Congress (beyond their J-6 sham investigation).

Roger Sweeny said...

Biden may have set himself a trap.

Some people say that the Republican Party has been successfully marketed (by its enemies) as "the white people party". Thus the hope that all non-whites, and all whites that want to be thought of non-racist, will default to the Democratic Party.

However, there may be developing a backlash, partly among whites but also among non-black non-whites, to the "we must do special things for black people" of the last few years. If the Republican Party was really willing to do anything to win, they would market the Democrats as "the black people's party".

I have no doubt that the media will call whoever Biden chooses a "well-qualified moderate" but I suspect many people will go, "Oh, she was just chosen cause she's black." And some will see a pattern that bothers them.

(There is also a sexual dimension here, of the Democratic Party as "the black women's party". How many black men will feel alienated from that? As a thought experiment, imagine Stacey Abrams as the face of the Democratic Party.)

Ceciliahere said...

It’s absurd that she’s the Vice President of the United States of America. A heartbeat away from the Oval Office.

Roger Sweeny said...

Biden may have set himself a trap.

Some people say that the Republican Party has been successfully marketed (by its enemies) as "the white people's party". Thus, the hope that all non-whites, and all whites who don't want to be thought of as anti-black, will default to Democrats.

However, there may be developing a backlash, both among whites and among non-black non-whites to the drum roll of "we must do special things for black people" of the last few years. If the Republican Party were actually willing to do anything to win, they would market the Democrats as "the black people's party".

I have no doubt the media will characterize whoever Biden nominates as a "well-qualified moderate". But lots of people will probably think, "she was nominated because she was black." And some will see a pattern they don't like.

(There is also a sexual angle, of the Democrat Party as the even more limited "black women's party". How many black males will feel alienated from that? As a thought experiment, imagine Stacey Abrams as the face of the Democratic Party.)

Brent said...

"It's absurd to think it might be Kamala Harris".

She will do far less damage to this nation seated on SCOTUS than she will if she becomes - by whatever means - President. Lord help us.

Brent said...

"It's absurd to think it might be Kamala Harris."


She will do far less damage to this nation seated on SCOTUS than were she to become - by any means - President. Lord help us!

pointsandfigures.com said...

To be somewhat fair, Trump needed to build credibility. NO one thought he would be a "conservative" given his background. Hence a list. I believe Trump more carefully considered his nominees and did consult with lots of people before making them compared to how Joey B will do it.

Rabel said...

If we're going to have a new African American justice I just hope she's a true African American in the mode of C. Thomas and not sorta Black like KH and so many others who are elevated into high positions with only a trace of African heritage.

I'm looking at you Barack.

Lurker21 said...

Meet civility bullshit's second cousin, bipartisanship bullshit. Is anything really bipartisan anymore? It would be nice if something was, but Biden's pretending that he's going to incorporate bipartisanship into his court picks is just more dishonesty.

Bender said...

Breyer spent his entire career backing up the left. This is the thanks he gets -- angry demands that he get the hell out of here, and then pissing all over him with respect to the announcement.

He should have expected such treatment. Certainly he doesn't deserve much sympathy. If you get into bed with them, they will screw you and leave you with a disease.

Static Ping said...

Ann: It's absurd to think it might be Kamala Harris.

True. It is also absurd that she is Vice-President. It is also absurd that Joe Biden is President. Furthermore, it is absurd that Sonia Sotomayor is on the Supreme Court. I am not sure what absurdity has to do with reality at this point.

Maybe someone should ask President Klain. Or Obama. Or Putin or Xi. We've gotten to the regent of the shogun of the emperor levels of government so who the heck knows is making decisions.

Big Mike said...

Tiffany P. Cunningham was a partner at Perkins Coie. I cannot imagine a worse selection.

(So, yeah, she’ll probably be Biden’s choice.)

Big Mike said...

It's absurd to think it might be Kamala Harris.

@Althouse, it might be absurd, but that doesn’t mean it cannot happen. You must concede that we are living in absurd times, not to mention abnormal, and that Joseph Biden is not a typical President.

Moondawggie said...

Dudes!

Lori Lightfoot would be perfect for this SCOTUS opening: African American, LGBT, assigned female at birth, progressive lawyer background, and utterly incompetent.

Got all those important intersectional boxes checked (even has 1 more box than Kamala!).

A fitting legacy for the Biden Presidency.

Horatio Lust said...

I know for certain that the nominee sexually assaulted me in high school

Gahrie said...

@Althouse, it might be absurd, but that doesn’t mean it cannot happen. You must concede that we are living in absurd times, not to mention abnormal, and that Joseph Biden is not a typical President.

I wouldn't bet my life on that......

What's emanating from your penumbra said...

You know, if Biden or any other president just shut up about identity politics, most people would be glad to see diversity on the court. That's not to say people would be supportive of a particular choice, the evaluation of whom for most people comes down to ideology. And to some degree qualifications.

When you see virtually all conservatives championing Clarence Thomas and hoping like hell other conservative minorities are appointed, it makes it absolutely clear that racial prejudice is not a significant motivating factor for supporting or not supporting appointments. Therefore, it's transparent pandering to promise the spot to a particular racial and sex category (in case there were any questions about that). There is no impediment to women or racial minorities being appointed other than qualifications and ideology.

Now age discrimination is another thing...

Paul said...

If Biden picks a far left weirdo... Expect Manchin and/or Sinema to vote no.

That is ... a NO VOTE for his pick.

Manchin is in a very RED state and they would not want such a SCOTUS pick. Same for Sinema.

He either picks a somewhat liberal judge or... he does not get a pick before mid-terms.

Maynard said...

Let's give Breyer a small amount of credit. He voted in favor of Bush in the first SCOTUS vote on the Florida SSC ridiculous decision, as did Souter.

What's emanating from your penumbra said...

"It's absurd to think it might be Kamala Harris."

I don't know about absurd, because Biden is barely competent enough to eat cereal. But assuming he's lucid at the time, it does seem like a very illogical pick.

Lem said...

The health authorities have set a precedent of allowing the government to stand in for your doctor. Anybody thinking about the possible consequences of that?

link to video

Lem said...

Oops I posted to the wrong post. Sorry about that.

Big Mike said...

The Babylon Bee has it figured out. Biden will nominate Donald Trump, to prevent him from running again in 2024. Trump is not black, nor female, but Joe Biden has lied before. Once or twice. Maybe three times. Sort of every time he opens his mouth. And sometimes even when he’s quiet.

BillieBob Thorton said...

Biden isn't picking anyone. This Obama's third term and he is going to select the nominee.

Brian said...

There is also a sexual dimension here, of the Democratic Party as "the black women's party

A black woman said those exact words on CNN last night. That the Democrat party
"was composed of and led by black women", so Joe should nominate a black woman.

Brian said...

It's absurd to think it might be Kamala Harris.

It's absurd to think she'd take it. She'd lose all leverage once she's nominated. The Democrats would tank her nomination (do we think there are no skeletons in Kamala's closet?) and out she would be.

n.n said...

Color before character? Female chauvinist pig? Diversity [dogma] breeds adversity.

rsbsail said...

As a retired chemical engineer, I like idea of Tiffany Cunningham as a candidate for the Supreme Court. Of course, she never actually worked as a ChE, but still, she had the exposure. OTOH, I have also known a number of ChEs who couldn't find their own sphincter with both hands.

RichAndSceptical said...

His previous quota pick of a black, female hasn't turned out very well for him.