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The very selective effort to cast Biden’s Supreme Court pick as an affirmative action hire

President Biden is committed to his campaign promise to name the first Black woman to the Supreme Court. Here’s a list of his top contenders. (Video: Mahlia Posey/The Washington Post)
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President Biden and the Democratic Party got a shot in the arm Wednesday with the news that Supreme Court Justice Stephen G. Breyer will retire. His retirement paves the way for Democrats to replace the 83-year-old with a liberal-leaning justice who could hold the seat for decades to come.

It’s not yet clear how hard Republicans might fight whomever Biden picks, particularly given that the pick won’t shift the current balance of the court. But almost immediately, some conservatives did signal an early battleground: attacking Biden for supposedly making Breyer’s replacement an affirmative action hire. Some even ventured to argue that Biden’s promise to appoint a Black woman constitutes illegal discrimination.

It’s a very selective argument.

“Biden said he will make his pick based purely on race and gender,” Fox News’s Sean Hannity said. He did so while introducing arguably Fox’s favorite constitutional lawyer, Jonathan Turley, who has written multiple op-eds suggesting that Biden’s promise is unconstitutional discrimination.

Added Tucker Carlson: “It’s possible we have all marinated for so long in the casual racism of affirmative action that it seems normal now to reduce human beings to their race.”

Ben Shapiro called it “definitionally affirmative action and race discrimination.”

The editors of the National Review said, “In a stroke, [Biden] disqualified dozens of liberal and progressive jurists for no reason other than their race and gender.”

Former Trump United Nations ambassador Nikki Haley tweeted, “Would be nice if Pres Biden chose a Supreme Court nominee who was best qualified without a race/gender litmus test.”

History, though, shows this is hardly a new thing — nor have such promises been determined to run afoul of the law. And, in fact, Haley appears to have said nothing when President Donald Trump signaled just two years ago that he had his own gender litmus test for a Supreme Court nomination.

Nor is Trump the only recent GOP president to make such a pledge. In fact, two and potentially three of the last four Republican presidents did the same thing — with little sign of such conservative pushback.

Late in the 1980 presidential campaign, Ronald Reagan promised that he would appoint a woman to the Supreme Court if given the opportunity. He said he would pick “the most qualified woman I can possibly find,” adding: “It is time for a woman to sit among the highest jurists.”

George H.W. Bush arguably engaged in the same practice. When Justice Thurgood Marshall retired and Clarence Thomas was eventually picked, Bush took care to say his pick would not be based on a “quota” or anything other than the best person for the job. But administration officials noted at the time that his search just happened to focus almost exclusively on minority and female candidates.

In the first two cases in particular, the pool of potential candidates was substantially decreased by the promise. So the question becomes why eliminating a huge majority of potential picks (by promising a woman) wasn’t discrimination, or why it doesn’t assign a historical “asterisk,” as one critic suggested it would to Biden’s pick, to the tenures of Amy Coney Barrett (Trump’s pick) and Sandra Day O’Connor (Reagan’s), but this one does. Or at least, why the people crying foul now didn’t also cry foul when Trump made his promise less than two years ago?

Biden’s promise was more specific than Trump’s, but why is the line drawn here? And when it comes to Reagan’s promise, the practical implications aren’t as different from Biden’s as you might think.

In 1980, only 8 percent of lawyers were women, and only about 5 percent of federal judges were. That meant Reagan’s promise excluded about 92 percent of lawyers and 95 percent of federal judges.

Today, about 5 percent of lawyers are Black (statistics are not so readily available for Black women, specifically), and about 5 percent of federal judges are Black women. Given that federal judges are usually chosen for the Supreme Court — 12 of the last 13 confirmed justices came from federal courts — Biden pared down the pool of candidates about as much as Reagan did four decades prior.

The arguments also ignore plenty of other things that could be construed as discrimination. It’s clear that presidents have little time for considering or appointing older justices, for example — because that means they wouldn’t spend as many years on the bench. (Trump even played up the youth of his first pick, Neil M. Gorsuch, by suggesting that Gorsuch might serve for 50 years.)

In practical terms, that has meant we’ve had only one justice over the age of 55 confirmed since 1986. What are the odds that the supposed best candidate has almost always not been someone older than 55? Excluding older candidates from the search would seem to be some form of age discrimination, especially given that those older justices would have been practicing law and deciding cases for much longer.

The point is that this seems to be a very convenient moment to suddenly raise such a fuss — one in which a rather arbitrary line is being drawn.

But it’s also one that could put pressure on Republican officeholders to take a stand. Are they, too, going to complain that this pick was designated for a Black woman, after not complaining about Trump designating one for a woman? Or is this merely the only thing professional pundits have to work with at this point? — an effort to rile up the conservative base, without much follow-through.

We shall see.