Joe Biden has not yet announced his nominee for the Supreme Court to replace retiring Stephen Breyer. But he promised that it “will be the first black woman ever nominated to the United States Supreme Court.” He added, “It’s long overdue, in my view. I made that commitment during the campaign for president, and I will keep that commitment.” More about that campaign commitment later.

It’s astonishing to see Biden taking us back to the days of segregation. There’s absolutely no difference in this and the signs that once hung on our public facilities: “WHITES ONLY” or “COLORED ONLY.” It’s allowing participation based solely on the color of one’s skin. It’s disgraceful, immoral, and probably illegal. Moreover, it’s demeaning to black women. And it seems to me the position will always carry with it an asterisk, as Roger Maris’ 61 homers did for many years.

We Came a Long Way

I’m old enough to remember segregated bathrooms right on our town square at the courthouse in Stephenville, TX and at the Ft. Worth Stock Show Rodeo. Even as a young guy, I was both confused and appalled at that. 

But we went from contested civil rights marches to a black president in a half-century. Now, after all that progress, Biden wants us to hop in his Back To The Future DeLorean and take us back to the 50s.

Invidious and Maybe Illegal

Harvard Law School professor emeritus Alan Dershowitz (a Democrat) said Sunday that Biden’s decision may actually be unconstitutional. Dershowitz told Maria Bartiromo, “As the Constitution, Article 6, specifically provides that no religious test should ever be required. I think the 14th and 19th Amendments also extend that to no racial or gender tests.” He added, “Nobody should ever be excluded because they don’t fit a racial or gender criterion.”

George Washington University law professor and constitutional scholar, Jonathan Turley (another Democrat), wrote on his website:

[T]his type of exclusionary rule has been found unconstitutional or unlawful in schools or businesses. While there may be legitimate points of distinction with a Court appointment, there is little discussion of why we should use a threshold exclusionary rule for admission to the highest court that the Court would not allow in any admission to a school or business.

But you don’t have to be a legal scholar to know this is wrong. An ABC News/IPSOS Poll found that 76% believes Biden should consider “All Possible Nominees,” and just 23% believes he should keep his promise to “Pick a Black Woman.”

An IOU from the Primary Race

Biden did make the commitment of appointing a black woman during the 2020 campaign. But was it really because of his burning passion for black people? Or women? Only God and Joe know for sure. After shambling through the Iowa and New Hampshire primaries, Biden badly needed a win in South Carolina. He reportedly made a bargain with Representative Jim Clyburn: Clyburn’s endorsement for a public commitment to nominate a black woman to the SCOTUS.

In their book, Lucky, journalists Jonathan Allen and Amie Parnes reported that Clyburn spoke to Biden about it the night before the debate in Charleston. Then, during the debate, Clyburn became increasingly frustrated that Biden was neglecting to make the promise.

Allen said on a Yahoo News podcast, “So Clyburn gets up from his seat in the debate hall in the audience, and he makes a beeline for the exit.” Then, he tells Biden backstage, “Look, I told you that I wanted you to say that you were going to name a black woman to the Supreme Court. You haven’t done it yet. You’ve had a bunch of opportunities. Don’t you dare leave this stage without doing it.” And then lo and behold … Biden made the commitment, Clyburn endorsed Biden (the very next day), and the rest is history.

Oh, and by the way, Biden appointed Clyburn’s daughter to a federal commission tasked to end poverty in Appalachia. So, perhaps there was one more bargaining chip to the deal.

Biden Opposed Black Nominees Before

But is Biden really so enamored with putting blacks and women on the bench? Then why did Senator Biden oppose and filibuster the nomination of Janice Rogers Brown to the D.C. Circuit in 2003, and again in 2005? Why did Biden preside over the “high-tech lynching” of Clarence Thomas in 1991?

An Idiot Counting Beans

This is the same Joe Biden who selected his entire Cabinet solely on identity politics, rather than qualifications. He chose his Secretary of Transportation, who as mayor of South Bend couldn’t even fix the potholes in the streets, because he was gay. He chose a head of Health and Human Services who is not a doctor or medical expert (but rather a trial lawyer). Then an Assistant Secretary of Health at HHS, who is a “trans-gender” and an advocate of sex changes for kids and the drugging of children with puberty blockers. Plus a head of the VA who is not a veteran, and an Envoy for Climate who is not a climatologist. (I thought they wanted to follow the science!) And how is all that working out for us? Even many Democrats will admit that Biden’s first year has been a disaster.

Now, Biden is about to use that same criterion of identity politics for a lifetime appointment to the highest court in the land. In this country, I’m certain we have numerous Hispanic, White, Asian, Jewish, Native American, Native Hawaiian, Arab, and other legal scholars … both men and women. It’s an absolute tragedy and a disgrace to shut them out of the process and not even allow them to be considered.  

“Peter said, ‘Now I know for certain that God doesn’t show favoritism with people but treats everyone on the same basis.’” (Acts 10: 34)