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Jay Ambrose is an OpEd columnist for Tribune News Service.
Supreme Court Justice Stephen Breyer, at the age of 83 and after three decades of demonstrating his brilliance and knowledge, is retiring. Past comments tell us what he wants as a replacement: someone of high legal skill to serve not as a politician seeking popularity or ideological objectives but as an upholder of the rule of law.
President Joe Biden apparently thinks differently. His standards are that the next justice should be Black and a woman.
That’s what he automatically said when asked about the Breyer retirement, and it is a reflection of what so much of our government and so many progressive politicians have become. They are players of identity politics, trying to serve one group or the other at the expense of other groups while study of the attributes of individuals as individuals comes in second, a plague afflicting Black Americans for ages.
The social justice crowd now thinks skin color can be more important than merit in finding people to play specific roles that can have mighty consequences for others. This mindlessness looks down on the selected group by assuming its members cannot otherwise advance and cheats the unselected groups that may include people who attained exceptional capabilities through exceptional effort. There are far better ways to confront racial prejudice than smashing the principle of fair play.
In short, Biden should be looking for the person most able to serve with wisdom in the hugely important position of Supreme Court justice, whatever race or sex that person may be. While there is no absolutely definitive, certain way to go about it, there are a host of techniques proven worthy over time, such as finding someone with lots of experience and success in a given field and widely appreciated by keen, informed observers.
None of this is meant to say that there is no Black woman out there who would be an outstanding Supreme Court justice. In fact, I have been highly impressed in reading about some of those Biden is said to be considering. If he nominated a Black woman as the best possible Breyer replacement without first limiting other possibilities, well, hip, hip, hurrah.
Especially given the fact that justices favored by their own party are a minority on the court, Democrats have wanted Breyer’s resignation as soon as possible. We will have a midterm election in November and there’s a reasonable chance that Republicans will become the Senate majority and refuse to go along with any progressive nomination. A big issue is Roe v. Wade, whether the Supreme Court should determine abortion rules or turn the job over to the states. Democrats tried to stop President Donald Trump’s nomination of Justice Amy Coney Barrett for fear her religious beliefs would cause her to favor the change. She correctly says the issue is what the Constitution and arguments say.
Keep in mind that Democrats have rejected the wants of Republican presidents and vice versa. Specifically, keep in mind how a Democratic Senate wouldn’t OK President Ronald Reagan’s nomination of the brilliant Robert Bork who later wrote that Sen. Joe Biden, chairman of the Senate Judiciary Committee, relied on a brief that was “world class in the category of scurrility.”
Biden was also chairman of the committee when Justice Clarence Thomas was a court nominee of a Republican president and there was questionable, downright demonizing, sexual-harassment testimony by Anita Hill with the TV-watching public not being convinced by what she said. “It is a high-tech lynching for uppity blacks,” Thomas commented. Biden voted against this judicial master who nevertheless was approved.
Although Thomas had an exceptional academic record and did especially well at Yale Law School, the school said it accepted him because of skin color, otherwise known as affirmative action. Thomas wrote that “it was futile for me to suppose that I could escape the stigmatizing effects of racial preference, and I began to fear that it would be used forever after to discount my achievements.”