"Former President Joe Biden lost his bid Monday to block the release of audio recordings and transcripts of interviews with his longtime ghostwriter..."

"... that were used in special counsel Robert Hur’s investigation into Biden’s unlawful hoarding of classified information. A divided federal appeals court ruled the 46th president’s privacy claims did not outweigh the 'substantial' public interest in the material... The audio recordings of those interviews became part of Hur’s investigation, with the special counsel noting in his February 2024 report that Biden showed 'diminished faculties and faulty memory,' and described the conversations as 'painfully slow, with Mr. Biden struggling to remember events.'... Biden’s attorneys have argued the conversations with Zwonitzer were candid and always intended to stay private...."

The NY Post reports.

"Biden doesn’t need a long list of derisive assaults. Just a few. I bet Trump would take the bait."

"In the first debate of the 2020 campaign, Biden took a slap at Trump when the former reality TV host wouldn’t stop interrupting: 'Would you shut up, man? This is so unpresidential.' He also referred to Trump as a 'clown' and a 'racist.' Biden was able to be sharp in his parries with Trump. Belittling him could yield the best payback."

Writes David Corn, in "Here’s How Biden Could Rattle Trump in Their First Debate" (Mother Jones).

There's always this idea of getting under the other guy's skin. Is Trump really someone you can "bait" and "rattle"? 

Here's my post from September 30, 2020, just after the first debate, "Biden tried to aggravate Trump by calling him 'man' over and over."

"We’re not interested in a war with Yemen. We’re not interested in a conflict of any kind."

"In fact everything the president has been doing has been trying to prevent any escalation of conflict, including the strikes last night."

Said John F. Kirby, a White House spokesman, quoted in "The Regional War No One Wanted Is Here. How Wide Will It Get? With the U.S.-led attacks in Yemen, there is no longer a question of whether the Israel-Hamas war will escalate into a wider conflict. The question is whether it can be contained" (NYT).

I find myself in The Wall Street Journal.

Here's the entire blog post.

"We have full access to everything. We can go everywhere."

That was the repeated statement of the 3 DOJ lawyers — who were described as displaying an "arrogant" demeanor — who were present during the Mar-a-Lago raid, according to an eyewitness quoted in "FBI searched Melania’s wardrobe, spent hours in Trump’s private office during Mar-a-Lago raid" (NY Post).

I'm not surprised that a search extends into a woman's most intimate space — how could searches be effective if the woman's closet were off limits? — but I recognize that this is something that hits onlookers hard. It makes the government seem more brutal if you picture its agents rooting around in the lady's underwear drawer. 

"Republican excuses for rejecting Ketanji Brown Jackson are absurd"/"The GOP won’t be honest about opposition to Judge Jackson."

Those are 2 different pieces ranking in the top 5 most-read opinion pieces in The Washington Post. 

I'm going to read them so you don't have to. Really, I want to test my hypothesis. There's frustration that Republicans aren't presenting a bigger target. The desire is to accuse them of rejecting KBJ because of her race, but there's nothing blatant, so effort must be put into teasing out the racial insinuations. Of course, Biden was blatant about race in making his choice, but that's what makes it so frustrating that Republicans aren't jumping at the bait.

Now, I'll read.

1. "Republican excuses for rejecting Ketanji Brown Jackson are absurd" by the WaPo editorial board. Overheated headline aside, this piece just says that the Senate should always confirm the President's nominee as long as basic qualifications are met. I pretty much agree with that, but it's not surprising that Republicans are paying back the Democrats for opposing President Trump's well-qualified nominees. The WaPo editors briefly acknowledge this un-absurd reality. The last paragraph asserts that Republicans will look "unattractive... in the history books," because their "almost entirely White caucus" is "rejecting the first Black woman."

2. "The GOP won’t be honest about opposition to Judge Jackson" is a piece by Jennifer Rubin. She speculates "that the GOP base is so infused with white supremacy that any vote for a Black woman would simply be unacceptable to the MAGA crowd." Doesn't the "MAGA crowd" love Clarence Thomas? Rubin's last paragraph begins: "We should not be surprised that in service of making Democrats appear to be an existential threat to America, Republicans will say anything to justify their opposition — the more venomous the better." Yeah, but we also should not be not surprised when, in service of making Republicans appear to be an existential threat to America, Democrats will say anything to justify their opposition — the more venomous the better.

"Biden Picks Ketanji Brown Jackson for Supreme Court."

 The NYT reports.

The official announcement from the White House is out. “President Biden sought a candidate with exceptional credentials, unimpeachable character, and unwavering dedication to the rule of law. He also sought a nominee — much like Justice Breyer — who is wise, pragmatic, and has a deep understanding of the Constitution as an enduring charter of liberty,” the White House says in its statement.

ADDED: WaPo greets the announcement with this sad headline: "Democrats hope Sen. Luján makes a quick recovery from stroke with vote on Supreme Court nominee looming." 

Do the Democrats need every single Democratic Senator? No confidence that surely at least one Republican will cross over?

Jackson received three Republican votes — Sens. Lisa Murkowski (Alaska), Susan Collins (Maine) and Lindsey O. Graham (S.C.) — when she was confirmed to the U.S. Court of Appeals for the D.C. Circuit last year. But Graham, citing the reports on Jackson, tweeted Friday that her expected nomination shows that Biden has been won over by the “radical Left,” signaling he could reverse course on a Supreme Court nomination vote.

What is the evidence that Jackson is "won over by the 'radical Left'"? I'm sure my question will be answered ad nauseam.

"I don’t believe in ultimatums. I don’t want nobody giving me one, and I’m not going to give anybody else one."

"I may be disappointed for the rest of my life, but I’m not going to give an ultimatum." 

Said Jim Clyburn, who is 81, quoted in "Jim Clyburn saved Biden’s candidacy — and now has the president’s ear on Supreme Court picks/The South Carolina lawmaker has tremendous influence in the White House, and he has made clear he wants the president to nominate U.S. District Judge J. Michelle Childs to the Supreme Court" (WaPo).

"I think we’ll get a vote from Republican side for the following reason: I’m not looking to make an ideological choice here."

"I’m looking for someone to replace Judge Breyer with the same kind of capacity Judge Breyer had, with an open mind, who understands the Constitution, interprets it in a way that is consistent with the mainstream interpretation of the Constitution."

Said President Biden, quoted in "Biden talks Supreme Court timing with Democratic senators/The president huddled with Judiciary Committee members as a nomination fight looms" (WaPo). 

Top-rated comment: "Why is it going to take over a month to make a choice? Six of the senate votes on the Democrat side are octogenarians - we're one heartbeat away from another stolen seat." 

I read the WaPo article because it was linked by David Lat in an update to his "President Biden's Supreme Court Nominee Will Be..../Here are updated odds that reflect the current state of play":

"Left splits over Supreme Court pick pushed by top Biden ally/Rep. Jim Clyburn is stumping for judge Michelle Childs to get the president's nod. While labor interests are skeptical, not every progressive senator is."

 Politico reports. 

Sen. Elizabeth Warren (D-Mass.) declined to talk about Childs at all: “I’m not going to comment. Nope.”

Sen. Bernie Sanders (I-Vt.)... offered a subtle warning.... “You want somebody who is going to be reflective of the needs of working families and understands that we are moving towards an oligarchy in this country"...

"Donald Trump Promised He Wouldn’t Nominate a Black Woman to the Supreme Court."

Claims Garrett Epps at Washington Monthly.

I can already hear snuffling noises off to my right protesting that he did no such thing, that Trump actually, as he said at the time, named highly qualified federal judges “representative of the kind of constitutional principles I value.” 

Yet it is a fact that the two lists his campaign developed with the counsel of conservative activists (which he had promised not to stray from in filling the late Justice Antonin Scalia’s seat on the Court) contained not a single Black woman. Trump said nothing about excluding Black female judges. He just did it....

Yes, and Biden would be in a very different position if he'd said nothing about choosing a black woman and had just done it. That's the traditional way of adding diversity to the Court. You say you're picking the very best person for the job and the person you chose is accorded the dignity of being called the best person and not merely the best within a constricted pool. 

But it is true that by offering the list the way he did, Trump assured anyone who cared that he would not nominate a black woman.

The idiocy of appropriating the ethnicity of the Other right when you're flaunting your racial progressiveness: Stop saying "sherpa"!

I'm reading "Why Stephanie Cutter says Dems need a new SCOTUS strategy/On this week’s show, Playbook author Ryan Lizza talks with Democratic strategist Stephanie Cutter about what it’s like to be a sherpa for a Supreme Court nominee" (Politico).

Cutter guided Sonia Sotomayor through the process, and some of the discussion is good:

[P]utting the first Black woman on the Supreme Court will be celebrated by most Americans...  [W]e were about to put the first Black woman on the court. That will be celebrated. The other thing that potentially could happen is some Republicans could overshoot this, and you already see some senators talking about how this is a quota pick or an affirmative action pick....

This person is not going to come off as an affirmative action pick. This person is going to come across as the most qualified person for the court, if you just look at the women on the proverbial short list. They can continue their racist dog whistles on this. But I think most people are not going to have the stomach for it, and it will turn around and bite them just to continue the dog analogy there.

That focuses the problem precisely: Democrats want to inspire a degree of celebration that feels good to their supporters and to tempt their antagonists to cry "affirmative action" in a manner that feels unkind to those who like that subject to be handled with discretion.

But Politico keeps using the word "sherpa." I'm amazed that they're still talking like that, appropriating the name of an ethnic group. That must once have seemed cool or cute, but now it just seems as though they're not even listening to themselves. It's awfully discordant to appropriate the ethnicity of an Other when you're flaunting your racial progressiveness.

Tulsi weighs in.

Biden chose Harris as his VP because of the color of her skin and sex—not qualification. She's been a disaster. Now he promises to choose Supreme Court nominee on the same criteria. Identity politics is destroying our country.

— Tulsi Gabbard 🌺 (@TulsiGabbard) January 31, 2022

This is such a weight to load onto Harris and Justice X, but Biden created this very obvious and easy opportunity, and since it is so predictable, he's fully responsible for it. He did what he did in pursuit of his own power, and he — a white male — is President of the United States because of it. That, too, is white privilege.

The NYT says that "Black women in the legal community are bracing for the possibility that the yet-to-be-named nominee will be judged unfairly as an affirmative action appointment."

I'm reading "Black Women in Law Feel Pride and Frustration Ahead of Court Nominee As Biden prepares to nominate the first Black woman to the nation’s highest court, members of this small, elite group are watching with complicated emotions," by By Tariro Mzezewa and Audra D. S. Burch. 

They quote a black female lawyer (Alisia Adamson Profit, 38): "People are going to say she only got this because she was a Black woman, and that could not be further from the truth. She would not even be considered if she wasn’t qualified, prepared and ready. There will be a segment that will discredit her ability to serve."

First: Why is the NYT — the voices sought out by the NYT and featured here — implying that affirmative action is disreputable?! I read the NYT every day, and it's my impression that the NYT strongly supports affirmative action and is especially keen to support it this year, as the Supreme Court is about to consider 2 cases challenging affirmative action in higher education admissions. So why should there be any stigma — or any recognition of stigma — to getting a position through affirmative action? To say that affirmative action devalues a person's achievement is to talk like Clarence Thomas. If you support affirmative action, say hooray for affirmative action. Isn't it wonderful that President Biden is openly committed to affirmative action and about to perform it? If your answer isn't yes, NYT, please do your soul-searching in express and clear words. Don't muddle up the discussion!

Second: Ms. Profit's statement doesn't make sense. The nominee will almost certainly be "qualified, prepared and ready" and "ab[le] to serve," but that won't negate the fact that that she "only got this because she was a Black woman." We know from Biden's express commitment that only black women will be considered. If this person who becomes the nominee were not a black woman, then it is plainly the case that she would not have received the nomination. Is the problem that "people are going to say" what is obviously true? Why can't we say it? Is it a secret? Is it shameful? But Biden is openly saying it, and as I've spelled out in the previous paragraph, you need to decide whether you are pro-affirmative action or not.

Third: Biden's advance announcement of intent prevents him and everyone else from doing what is normally done — asserting that the person chosen is actually the very best judicial mind in all the land. Maybe the theater of excellence is desirable and uplifting, and maybe it's bad to single out this candidate to be deprived of the glory of that rhetoric, but she won't be the only one. It happened to Sandra Day O'Connor after Ronald Reagan committed in advance to choosing a woman. But maybe it's time to be a lot more honest, mature, and sophisticated and admit that the President is NEVER choosing the very best one. He's systematically eliminating people who are too old or who have the wrong politics, and there are surely endless other attributes that get you stricken from the President's list that have nothing to do with how wonderfully you can decide legal cases.

***

The slogan popped into my head: "Why not the best?" 

Yes, whose slogan was that. I needed to remember because I believed it would make my point. Ah, here: 

Isn't it pretty to think we could have the best? Oh, he's the best, Jimmy Carter. 

No, he wasn't the best, but he was the one we came up with at the time, at the end of a grueling, ridiculous process that never gives us the best. We're lucky if we even get someone reasonably good and not horrible. 

The Justices on the Supreme Court — now, and after one is replaced by a new one who will be a black woman — are good enough but presumably not the best. Surely, the best never even make the short list. How could they? They can't — and shouldn't — fit the needs of the President.

"Like Judge [Ketanji Brown] Jackson, Justice [Leondra] Kruger has a dazzling résumé.... The main differences are that she’s younger and..."

"... likely to be more moderate on SCOTUS than Judge Jackson, at least based on her record on the California Supreme Court, where she has sided with Republican appointees more often than her fellow Democratic appointees. Some observers also see Justice Kruger as 'intellectually stronger' or boasting more 'intellectual firepower' than Judge Jackson. [UPDATE (3:06 p.m.): For some important clarification of the preceding sentence, please see my Twitter thread.] The youth and moderation cut both ways. Yes, the Biden Administration favors young nominees. But on the other hand, Justice Kruger is young enough that she’ll be a viable SCOTUS pick for another five to ten years, so she could be 'saved' for a future vacancy (just as Justice Barrett was passed over for Justice Anthony M. Kennedy’s seat so she could be “saved” for Justice Ginsburg’s). The moderation makes Justice Kruger easier to confirm, which is useful in a closely divided Senate. But on the other hand, it has made some on the left somewhat cautious about or even opposed to her."

Writes David Lat at "Handicapping President Biden's Supreme Court Shortlist/Here are my odds on the leading contenders—and some interesting historical analysis" (Original Jurisdiction). Lat gives Jackson a 40% chance of getting the nomination and Kruger a 30% chance.

I prefer moderate Justices, so I hope it's Kruger. And I would add 2 things: 

"Republicans would be wise to lay low, knowing that whomever Biden puts on the court, the conservative majority remains intact."

"But in today’s scorched-earth political environment, I’m not sure that ambitious GOP senators will be able to restrain themselves, especially if the party’s — scratch that, I mean the cult’s — unhinged leader, Trump, eggs them into fighting a battle they cannot win.That, of course, would only outrage and further motivate the Democratic Party’s base.... Momentum matters in politics, and so does enthusiasm. For no good reason, Democrats have sunk into a sour, defeatist mood. The chance to name Breyer’s successor on the Supreme Court is an opportunity to change the narrative...."

Eugene Robinson — in "Breyer’s retirement is an opportunity for Democrats to rally. They shouldn’t squander it" (WaPo) — offers Republicans advice. He doesn't want to help them though, obviously, so is it presumptively bad advice. 

So what's the good advice?

White people and men have always been represented on the Supreme Court out of proportion to their portion of the American population.

If Biden keeps his pledge and nominates a black woman, and if she is confirmed, then, for the first time, the percentage of black people on the Court (22.2%) will exceed the percentage in the population (12.1%).

Women will still be underrepresented in proportion to the population — 44.4%, instead of 50.5%.

Does 22.2% seem like too much representation for black people on the Court? Consider that there has never been even one Asian American or a Native American nominated to the Supreme Court. But also consider that many people believe that Clarence Thomas, because he is conservative, doesn't represent black people at all. 

Look how clearly Thurgood Marshall stated that position as he vacated the seat Thomas took (scroll to 2:30):

"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:

"Congressional Democrats will introduce legislation Thursday to expand the Supreme Court from nine to 13 justices..."

NBC News reports.

The Democratic bill is led by Sen. Ed Markey of Massachusetts and Rep. Jerry Nadler of New York, the chair of the House Judiciary Committee. It is co-sponsored by Reps. Hank Johnson of Georgia and Mondaire Jones of New York. The Supreme Court can be expanded by an act of Congress, but the legislation is highly unlikely to become law in the near future given Democrats' slim majorities, which include scores of lawmakers who are not on board with the idea. President Joe Biden has said he is 'not a fan' of packing the court....

Last week, Biden announced the formation of a commission of liberals and conservatives to study the structure of the Supreme Court, including the number of justices and the length of their service.

"To study the structure" ≈ to quietly kill the idea. So Markey and Nadler are stepping on their President's subtle manipulation. Another way of putting that is they could see what Biden was doing, so now is precisely the time to get out in front of him.

ADDED: I'm strongly opposed to enlarging the Court. I'm just saying I can see Markey and Nadler's motivation.

FROM THE EMAIL: Rob writes:

Based on the flood of Republican emails in my inbox today, I wouldn’t discount fundraising as a significant motivation for the Markey/Nadler Court-packing bill. (I assume a mirror image of that deluge has hit every D or progressive inbox today.) As with abortion, both sides can raise prodigious amounts of money off the threat of Court-packing. The fact that decisive action is always “just another election cycle away” is a feature, not a bug.

"These highly-qualified candidates reflect the President’s deeply-held conviction that the federal bench should reflect the full diversity of the American people – both in background and in professional experience..."

Says "President Biden Announces Intent to Nominate 11 Judicial Candidates" (White House press release). 

Quote attributed to Biden:

"This trailblazing slate of nominees draws from the very best and brightest minds of the American legal profession. Each is deeply qualified and prepared to deliver justice faithfully under our Constitution and impartially to the American people — and together they represent the broad diversity of background, experience, and perspective that makes our nation strong."

Who writes this stuff? You've got the "best and brightest" cliché (puffed up with "very"). You've got the silly mixed metaphor, "trailblazing slate." You've got the syrupy ideology  — "broad diversity... makes our nation strong."

Looking at the list, I see that 9 of the 11 are female.

Here's the NYT article: "Biden Names Diverse Nominees for the Federal Bench/The president’s first choices for district and appeals court openings reflected his campaign promise to choose judges from outside of traditional backgrounds."