Issue 124
February 6, 2022
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Contrary to popular belief, the most important person to recently announce their retirement was not Tom Brady. Last week, Supreme Court Justice Stephen Breyer (83), the oldest pillar of the SCOTUS’ liberal wing, announced his retirement at the end of this term. Breyer’s decision came on the heels of an intense pressure campaign from left-wing activists, determined to ensure that sitting President Joe Biden would nominate the next SCOTUS justice.

Justice Breyer’s retirement will not tilt the ideological makeup of the court. Presuming Biden appoints a left-leaning justice, conservatives will still hold a comfortable 6-3 advantage. However, had Justice Breyer decided to remain on the court, and Biden & Co lost their razor-thin majority in the senate this November, a GOP lead upper chamber would have surely stymied Biden’s nominees. This potential scenario horrified Dems, still seething about 2016 when Senate Majority Leader Mitch McConnell (R-KY) refused to hold a vote to confirm Merrick Garland, who was Barack Obama’s nominee. Then, in an about face, McConnell & Co confirmed Amy Barrett, President Trump’s nominee, just weeks prior to election day, in 2020.

The Politicization of the SCOTUS

That SCOTUS has become politicized is an unnerving microcosm of our time. In the past, justice nominations were cordoned off from the odious horse trading that permeates other branches of government. In fact, before the internet age, with a few notable exceptions most Supreme Court nominees enjoyed significant bipartisan support.

Justice Breyer was nominated by democrat Bill Clinton and confirmed 87-9. The recently deceased Ruth Bader Ginsberg, another Clinton nominee, was confirmed 100-0. Sandra Day O’Connor, the first woman to serve on the Supreme Court was nominated by republican Ronald Reagan; she too was unanimously approved.

A shift began after the bitterly contested 2000 presidential election. Senate Dems, still upset about Al Gore’s controversial defeat, filibustered an unprecedented number of President George Bush’s judicial nominations. In response, the GOP controlled Senate considered changing the rules to eliminate the 60-vote threshold, the so-called “nuclear option.” However, after adding to their majority in 2004, republicans no longer needed to explore this path. In 2005, President Bush nominated Justice John Roberts to the SCOTUS. He was confirmed, but 50% of Senate Dems voted against him. That same year, Bush nominated Samuel Alito. Alito was also confirmed, but only four Democrat senators supported him.

After Barack Obama won the White House in 2008, he benefited from being just one senator shy (59) of a supermajority. He nominated Sonia Sotomayor in 2009 and Elena Kagin in 2010. Sotomayor’s confirmation garnered the support of nine out of 41 GOP senators. Justice Kagan’s confirmation reaped the support of just five GOP senators.

A few years later and still in the minority, Republicans began to filibuster almost all of Obama’s federal judicial nominees. In response to GOP stonewalling, in 2013 Senate Majority Leader Harry Reid (D-NV) employed the nuclear option to eliminate the 60-vote filibuster needed for federal judicial appointments (but not SCOTUS nominations). Afterwards, Senate Minority Leader Mitch McConnell said, "you'll regret this, and you may regret this a lot sooner than you think."

Democrats indeed came to regret Mr. Reid’s aggressive political jockeying. In 2017 and back in control of the Senate, McConnell returned the favor, one-upped Reid, and employed the nuclear option to end the 60-vote filibuster needed for Supreme Court nominations. Subsequently, Donald Trump nominated Neil Gorsuch, Brett Kavanaugh, and Amy Barrett. All three were confirmed (Gorsuch: 54-45, Kavanaugh 50-48, 52-48) by simple majority.

Biden’s Campaign Promise

During President Biden’s presidential campaign, he promised that if given the opportunity to nominate a candidate to the SCOTUS, that person would be an extraordinarily qualified black woman.

Said Biden, “the person I will nominate will be someone with extraordinary qualifications, character, experience, and integrity. And that person will be the first Black woman ever nominated to the United States Supreme Court. It's long overdue in my view.”

Immediately after Justice Breyer announced he would be stepping down, a consortium of democratic lawmakers took it upon themselves to remind President Biden of his campaign pledge. Said Senator Patty Murray (D-WA), “I support @POTUS’s pledge to nominate the first Black woman to the Supreme Court.”

Congressman Jamal Bowman (D-NY) tweeted, “POTUS, you promised us a Black woman on the Supreme Court, let’s see it happen."

Quotas & SCOTUS

At TQC, we agree with President Biden: a black woman on the high court is long overdue. In fact, of the 115 judges who’ve served on SCOTUS, only two were black and both were male. However, we believe Biden was wrong to promise that if given the chance, he would nominate a black woman, thereby excluding all other candidates.

Too often in America’s past, well-qualified blacks and other minorities were passed over for positions and promotions, solely because of their skin color. That is reprehensible. Today, Joe Biden is making skin color (and gender) a prerequisite for the job and pre-conditions for non-consideration. In doing so, Biden is diminishing the candidate of his choice’s qualifications - regardless of what they are - and magnifying their physical attributes - regardless of who it is.

In an ironic twist, Biden’s misguided approach risks catalyzing some of the very ills of the past that he is rightfully trying to remedy today. Without question, the SCOTUS nominee will be highly competent. Regrettably, she risks being looked at with skepticism by many, partly because of past statements of her nominator.

The Most Qualified Candidate

Centrist Senator Susan Collins (R-ME), who’s caucused against her party in the past, has stated that she supports more diversity on the SCOTUS and would be “open to whomever he (Biden) decides to nominate.” She continued, “but the way that the president has handled this nomination has been clumsy at best…It adds to the further perception that the court is a political institution like Congress when it is not supposed to be.” We agree.

Regarding potential replacements for Justice Breyer, there is no such thing as “the most qualified candidate.” There are a handful of exceptional candidates whose academic and professional records are exemplary, and whose history of personal conduct is commensurate with that of a SCOTUS justice. Black women are surely among them.

In our view, a more effective, apolitical, and mutually beneficial way for Mr. Biden to have achieved his objective would have been to state something analogous to: "My team will engage in an exhaustive vetting process to identify an exceptional candidate." And then nominate a deserving black woman.