Whether he succumbed to the pressure or just decided to call it a day, word squeaked out yesterday, Jan. 26, that Supreme Court Justice Stephen Breyer will be retiring at the end of the high court’s term this summer. Of late, Breyer, 83, has been subject to a billboard campaign urging him to go and a very public crusade by Democrats all but begging him to retire.
By stepping down, Breyer opens a seat on the bench for a younger so-called liberal to join the elite members of the court. Of the nine, three were appointed by President Trump, which has stuck in the craw of progressives, perhaps causing the urgent political push to get Breyer to call it a day.
Whatever Breyer’s reasons, all eyes now turn to President Biden, who has previously pledged to appoint a black woman as the next Supreme Court justice if given a chance. Constitutional Law Professor Jonathan Turley has gone on record as saying, “Even with identity politics, the pledge to impose a gender and race requirement for the next Supreme Court nominee is as ironic as it is troubling.” Further, Turley points out, “Imposing an absolute requirement that a nominee is a particular gender and race is effectively an affirmative action pledge. It is precisely what the Supreme Court already declared to be unconstitutional discrimination.”
There are so many questions regarding Mr. Biden’s next pick for the high court and the criteria he will use to make that decision; we turn to Liberty Nation’s Legal Affairs Editor Scott D. Cosenza, Esq. for the high drama that is likely to take center stage with Justice Breyer’s coming departure from the high court.
Leesa K. Donner: I’ve just got to start with the big question – assuming Biden holds to his pledge to nominate a black woman to the bench, do you agree with Turley? Or do you see it differently?
Scott D. Cosenza: I agree that it is both ironic and troubling. Just this week, the Supreme Court took up a challenge to one of the few places where racial discrimination continues to thrive – college admissions. More’s the pity that we’re now likely to see a candidate for this supremely powerful position restricted to people based on their immutable characteristics.
It’s also maddening when you consider how small the talent pool is for the president when he restricts his choices this way. According to the American Bar Association, 1.3 million lawyers in the United States are currently practicing. While being an attorney is not a requirement for becoming a Supreme Court Justice under the Constitution, it is practically speaking, so let’s take that as our starting point.
According to the ABA’s 2021 profile of the legal profession, women made up 37% of the total number of lawyers. Black attorneys comprised 4.7% of the lawyer population. So, instead of deciding from a pool of 1.3 million and picking the best possible candidate from that group, Biden’s imposition of race and sex leaves us with a total pool of roughly 22,607 candidates. Let’s add another factor; black and women lawyers skew younger and newer, meaning the most experienced and thus qualified candidates are even less likely to be female and black. So instead of 300 sitting federal judges to choose from of any race and sex, there are five black women.
As in every other job, advancing candidates because of race and sex over experience and competency does not produce better results. This is true whether the preference is for white men, as existed for so long, or now, for black women.
LKD: President Biden has spent much time celebrating his civil rights record lately. Isn’t it a little rich for the president to use these discriminatory criteria to choose the next justice?
SDC: Sadly, this kind of hypocrisy is all too common. Somehow race-based discrimination is abhorrent unless your motives are pure or the races you prefer are currently in favor. Justice Clarence Thomas laid waste to that thinking in his dissent in the landmark affirmative action case of Grutter v. Bollinger. He said any time the government “makes race relevant to the provision of burdens or benefits, it demeans us all.” However, wearing race-based discrimination like a hero’s cape is likely to garner Biden support from many in his base.
LKD: Sorry, but I’m going to put you on the spot here. Give us the short list of possible choices if Biden does play the game of identity politics?
SDC: I’ll take the easy way out and defer to SCOTUSblog’s publisher Tom Goldstein, who has been counsel in well over 100 Supreme Court cases. He wrote, “[t]wo potential nominees therefore stand apart from all others: Leondra Kruger, a justice on the California Supreme Court, and Ketanji Brown Jackson, a judge on the U.S. Court of Appeals for the District of Columbia Circuit.” Judge Brown is a former clerk of Justice Breyer, and may warrant inclusion for consideration without reference to her race or sex. In that case she is a victim of affirmative action rather than a beneficiary of it.
LKD: Now, who do you think should make that list without the lens of gender and race being applied?
SDC: Well, from Biden’s perspective, it would likely be Sri Srinivasan, currently chief judge of the D.C. Circuit Court of Appeals. He’s a former principal deputy solicitor general who has argued dozens of cases before the Supreme Court. Judge Srinivasan was on Barack Obama’s short list before that president nominated Merrick Garland to replace Antonin Scalia. He’s a brilliant jurist with academic credentials beyond reproach and had the experience and record to garner a confirmation vote of 97-0 in the Senate. Judge Ketanji Brown Jackson, by contrast, won only 53 votes in her confirmation to the same court.
LKD: Let’s face it, Scott, the last few Supreme Court nominations have been nothing short of a blood bath. Do you think this is in the cards for the next one?
SDC: This may sound partisan, but I think the facts support it. Those bloodbaths are typically about actors on the left being apoplectic that a Republican president may nominate an actual conservative. Justices Sonia Sotomayor and Elena Kagan were both confirmed by comfortable margins, and I expect if Biden nominates someone who is not fairly described as a judicial radical, his will be too.