On the surface, it would seem the chance to appoint a Supreme Court Justice would carry the potential of strengthening Joe Biden’s already tenuous hold on the presidency, or at least not hurt it. Perhaps this is just the opportunity he needs to change the subject from inflation, Ukraine, the border crisis, a crime wave, and associated issues that have dragged him into the ditch. And at worst – or so goes conventional wisdom – it will be a neutral even with no ultimate effect on this president’s efforts to reset his failing administration. But given what we have witnessed from this president over a little more than a year in office and his already announced selection criteria, a different outcome seems likely – that no matter who he picks, Biden’s position will be further weakened.
By narrowing the field of candidates explicitly to a black woman – distinct from “woman of color” and likely meaning a descendant of slaves, which is significant to the race-obsessed left – Biden has already created a controversy he could easily have avoided. He could have just gone ahead and chosen a black female and declared her the most qualified. But by announcing that he would pick someone from that exact demographic pool in advance, he has made it appear to be an affirmative action hire and that he has once again bowed to the loudest voices in his party on the far left.
But turning an opportunity into a controversy, and looking weak once more in the process, is not even the worst part of it for Biden, or the Court. Consider what effect the advance announcement of the parameters for selection will ultimately have on the reputation of the eventual nominee. She will always be known as Biden’s token, his bow to progressives, and she will always be tarnished to some degree because of it. That is unfair to anyone entering the Court. Sure, most everyone would have known Biden’s motive, but does it not disrespect the ultimate nominee to publicly declare such a thing?
Ronald Reagan announced during his 1980 presidential campaign that he would name the first woman to the high court, but that did not narrow the field of candidates nearly to the same degree – and few could believe ideology was much of a factor given that Justice Sandra Day O’Connor turned out to hold an indistinct judicial philosophy. It was an exercise akin to Nixon going to China because conservatives could trust the court’s first female would not be a raging feminist.
How serious is Joe Biden about picking the right person, the best person, for the Court? Well, in contrast to Donald Trump, who went through an exhaustive process for his three nominees and examined dozens of candidates, by credible accounts this president agreed to narrow his field of options for the Supreme Court to a black woman during a 15-minute break in the green room in the midst of a debate with Bernie Sanders, when Biden’s political benefactor, Rep. James Clyburn (D-SC) twisted his arm. Sure, what the hell, he must have thought.
And why not? This is the quintessential career politician to whom expansive thinking appears foreign, who has always been willing to reverse positions or adopt new ones to, shall we say, meet the moment. This is a man who, for example, spoke passionately in defense of the filibuster for his entire career in the Senate, but now says it must be overturned lest democracy itself be threatened. A man who on at least a dozen occasions during the 2020 campaign promised to end fracking and/or fossil fuels altogether only to later look straight into the camera and deny he ever said it.
Beyond all of that is the matter of repeating a process that has already gone badly off the rails. In selecting Kamala Harris based on the exact parameters being used once more for SCOTUS, he devalued not only his own brand and reputation, but also the very legitimacy of using race and gender as the sole factors for a position of such magnitude.
Then there is the matter of which black woman Biden actually selects. Judge J. Michelle Childs, pushed even by GOP Senator and fellow South Carolinian Lindsey Graham, might have the easier path to confirmation in a 50-50 Senate. Judge Ketanji Brown Jackson may be more satisfactory to the hard left. But given his rapidly declining brand in the party of grievance the Democrats have become, Biden will likely satisfy neither side. He will disappoint either vulnerable moderates in the House forced to defend the appointment during their doomed midterm campaigns or progressives who will decry the missed opportunity to turn the court in a socialist direction.
Members of Congress can pass a law only to see it overturned in the next session. New spending can be approved, but once the money is gone, the next budget cycle arrives in a year’s time. But when you pick someone for the High Court, he or she is likely there for a generation and beyond. The voters, especially those on the right who care most deeply about the judicial branch, understand the significance of any justice who will hold no less than the power of life and death in their hands.
Democratic presidents have never failed to select justices who remain in lockstep with the liberal agenda, which is likely why leftists consistently express less interest in SCOTUS than conservatives. They have no doubts about the judicial philosophy of Democrat appointees, unlike Republicans, who have seen their presidents swing and miss on several selections. David Souter and John Paul Stevens were the latest to turn sharply leftward once they arrived on the court – and conservatives are still smarting decades later over President Eisenhower’s selection of Earl Warren as Chief Justice after he played pied piper to the Court that foisted radical reforms on the country, foremost among them abortion as a constitutional right.
This president has repeated in this process what has become a habit: He has created an unnecessary, gratuitous, self-inflicted wound, this time by repeating a selection process which by all accounts – yes, even according to those on the left – was a train wreck the first time. With his credibility and power seemingly diminishing by the day, it seems like a literal Breyer-briar patch through which Joe Biden must now navigate to experience even a minimal benefit from what could have been an enormous opportunity.
~ Read more from Tim Donner.