President Biden confirmed Thursday that he will fulfill his campaign promise to nominate a black woman to the Supreme Court, but constitutional scholar Jonathan Turley has warned that the high court itself has ruled the condition of gender and race in schools and private businesses to be unconstitutional.
Turley, a law professor at George Washington University, recalled that during a presidential primary debate with Bernie Sanders, Biden pledged to nominate only a black woman for the next open Supreme Court seat and to choose a woman as his vice president. And he asked Sanders to make the same pledge.
In The Hill, Turley called Biden’s “pledge to impose a gender and race requirement for the next Supreme Court nominee” as “ironic as it is troubling.”
“What Biden was declaring, and what Sanders wisely avoided, would effectively constitute discrimination in admission to the Supreme Court,” Turley said.
“Indeed, the Supreme Court has declared that such race or gender conditions are strictly unconstitutional for admission to public colleges.”
On Thursday, Biden said in an address at the White House that after a “rigorous” process of consultation with Vice President Kamala Harris, senators and legal scholars, and interviews with the top candidates, he will decide on a nominee by the end of February.
See video of Biden’s remarks:
BREAKING: Biden confirms he will nominate a Black woman to the Supreme Court, and says he intends to announce his decision before the end of February.
“It’s long overdue, in my view. I made that commitment during the campaign for president, and I will keep that commitment.” pic.twitter.com/1ryXzVv8Yv
— CBS News (@CBSNews) January 27, 2022
Turley said Biden’s pledges amount to this: “No matter how qualified men or, in the case of the Supreme Court, women who are not black may be, he will not consider them as candidates. In the case of vice president, such gender discrimination would be allowed, as presidential candidates can select a running mate on any grounds and voters can decide if they approve.”
But Turley argued that justices are lifetime appointees, and presidents “have always been careful to state that, while they seek diversity among their nominees, they would appoint the most qualified person regardless of race, religion, gender, or sexual orientation.”
“But in a single declaration, Biden quickly dispensed with even the pretense of equal consideration,” he said.
“Imposing an absolute requirement that a nominee be a particular gender and race is effectively an affirmative action pledge.”
And that, Turley said, is “precisely what the Supreme Court already declared to be unconstitutional discrimination.”
The constitutional scholar cited the 1977 case of Regents of the University of California vs. Allan Bakke in which the Supreme Court found quota and affirmative action admissions policies based on race to be unconstitutional.
“While the justices were fractured on the logic, a clear plurality on the bench supported the view that preferring ‘members of any one group for no reason other than race or ethnic origin is discrimination for its own sake,’ adding ‘this the Constitution forbids,'” Turley wrote.
Following that decision, the Supreme Court over the next 20 years struck down admissions policies that directly or indirectly used race as a critical element.
Significantly, the court “continued to allow race and gender to be used as part of an overall effort to promote diversity so long as it was not the emphasis or overriding criteria.”
“That is precisely the position of past presidents, and Sanders, in saying that they want greater diversity without declaring that men or those who are not black will not be considered, as Biden pledges,” Turley said.
Biden embraces discrimination
On his personal webpage, Turley addressed critics of his stance on Biden’s pledge who argued President Reagan did the same thing when he pledged to nominate the first woman to the Supreme Court.
Turley pointed out Reagan was simply pledging he would select a woman in “one of the first Supreme Court vacancies” rather than the first vacancy. And when the vacancy arose, aides told media there was “no guarantee” that he would select a woman.
In his column for The Hill, Turley noted that Biden’s pledge would rule out a nominee like Ruth Bader Ginsburg because of the color of her skin and Thurgood Marshall because of his gender.
“Louis Brandeis and Oliver Wendell Holmes would be two-time losers under this policy. Indeed, this is just ironic for those four members of the Supreme Court who have voted consistently to uphold admissions policies based on race,” he wrote.
Turley acknowledged that “identity politics played a role in some nominations, but presidents have at least maintained an appearance of their selections based purely on merit.”
“Biden now also belittles those minority jurists who can compete for the Supreme Court without an assurance that no whites or other women will be considered,” he said.
“In the name of diversity, Biden embraces discrimination.”
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