Joe Biden recently stated that two main criteria he will be using to choose who to nominate to the Supreme Court to replace retiring Justice Stephen Breyer, is “black” and “woman”. Not only on the surface is Biden’s pledge racist and sexist, it is also both unconstitutional, and a violation of the 1964 Civil Rights Act which clearly states that it is unlawful for an employer to fail or refuse to hire any individual because of such individual's race, color, religion, sex, or national origin, which is what Joe Biden is doing to all non-black, non-woman candidates. A black woman may very well be the best and most qualified candidate to fill the vacancy on the Supreme Court, but this is not the process in which we go about finding that out. Joe Biden has come right out and said, he is rigging this process.
This should not be a surprise because Joe Biden has already done this. During the Democrat primary, Biden stated that he would use the same two criteria, “black” and “woman”, when choosing who would be his running mate. How has this worked out for him? He chose Kamala Harris, who has been an utter disaster in her role. Her primary assignment as Vice President has been the “Border Czar”, and under her watch, over two million illegal immigrants have entered our country through the southern border. She has yet to visit the border to see for herself the chaos that is going on down there. Thousands of illegal migrants have died on their journey to the United States as a result of Biden’s policies. Record amounts of fentanyl have crossed the border which has killed a record number of American citizens. MS-13 gang members, known felons, and terrorist have crossed the southern border into the United States in the last 12 months. DHS Secretary Alejandro Mayorkas, said that the border situation is “worse now than it, frankly, has been in at least 20 years, if not ever.” Choosing Kamala Harris for the optics has damaged our country, race relations, Kamala Harris, and all black women.
But Joe Biden has used this same type of criteria to fill out his entire administration. When selecting his Cabinet, Biden said that “my cabinet, my administration will look like the country” which means he will select his nominees based on race, gender, and sexual orientation. Transportation Secretary, Pete Buttigieg was not selected because he was the most qualified or the most experienced candidate; he was chosen because he was going to be the first gay cabinet Secretary. And what has happened? We are suffering through an unprecedented supply chain crisis with shipping containers being lost or stolen from docks, and a backlog of cargo ships spreading up and down the West Coast.
I’m not claiming that a gay person cannot effectively do the job of Secretary of Transportation. I’m sure there are plenty smart, intelligent, qualified gay people. The problem is that Pete Buttigieg is not one of them. But when your primary criteria for hiring someone is not how smart or qualified, they are, but what their sexual orientation is, then you end up with Pete Buttigieg, and a massive supply chain crisis. Buttigieg believes that the biggest issue facing our transportation department is “racist roads”. This is what has happened with many of Biden’s cabinet selections because he put skin color or gender or lifestyle as a higher priority than intelligence and qualifications.
Janet Yellen has struggled in her role as Secretary of the Treasury. We have had major increases in inflation, devaluation of the dollar, and problems in regulating cryptocurrency. She has stated one of her primary concerns is racial wealth equity. All this leads to the obvious question, does she have that job because of her qualifications or because of her gender? Biden’s nomination to Secretary of Defense, Lloyd Austin oversaw our disastrous withdrawal from Afghanistan while he was purging soldiers with right leaning political positions from the Armed Forces and teaching Critical Race Theory to our soldiers. It begs the question, does Lloyd Austin have his job because of how qualified he is or because of diversity?
I am only asking these questions because Joe Biden has said he selected his cabinet based on race, ethnicity, gender or sexual orientation. So, it is only logical to questions the qualifications of his selections. How has all this worked out for him. Right now, Joe Biden’s approval rating is at historic lows, and disapproval rating at historic highs, mainly because the people he has surrounded himself with were put in their position based on a criterion other than being the smartest and most qualified.
It is easier to see Biden doing this type of thing with the Vice President or Cabinet positions because those are political nominations. The Supreme Court is supposed to be an apolitical body. And knowledge of the Constitution which is the primary qualification of a Supreme Court Justice transcends race, gender, or lifestyle. It is an objective exercise, separate from the subjectivity which accompanies political decisions, personal histories, and social categories. A person’s race, gender, or lifestyle should not be used to inform a Supreme Court Justices’ decision on the constitutionality of a law or action. If there is any place in our government where it is imperative that the decision makers are colorblind, gender-blind, lifestyle-blind, it is the Supreme Court making decisions of constitutionality. The Constitution was written to provide a consistent framework that treats all citizens equally regardless of race, gender or lifestyle. So, selecting a justice to sit on the court based primarily on her gender and race, not on knowledge and intelligence, in order to get that gender and race’s perspective works directly against the purpose and vision of the court and the Constitution.
If the Justice’s fidelity to the Constitution is the main priority of the job, then stating the person has to be a certain race or gender cannot be a priority, but if it is, then the nominee’s fidelity to the constitution becomes compromised. Not only does nominating a justice based on gender and race undercut the credibility of the court, it calls into question the credibility of the justice herself. I would be saying the same thing if a President said that the primary criteria for nominating a justice was white and male. The President would be shrinking the pool of qualified candidates significantly, and the chances we would be getting the best most qualified justice would be greatly reduced.
We are talking about the Supreme Court of the United States of America. These nine people are supposed to be the nine best legal minds and scholars in our country – the nine best, not any nine that are qualified of a certain race and gender. Since black females only make-up 7% of our population, eliminating 93% of the possible candidates, statistically speaking, means that there is a very good chance that Joe Biden will not be nominating the best legal mind and scholar that is available. This is not to say that a black woman could not be the best legal mind and scholar out there, but we would only know she was the best only if she were compared to all available legal minds and scholars. But since Joe Biden told us from the onset that he is narrowing his search to only 7% of the population, it is fair to question if the person he eventually nominates is really the best available candidate for this very important position.
It is misguided to argue that we need to have a black woman on the Supreme Court because she will provide a different perspective to the court. The job of a Supreme Court justice is to hear cases and determine the constitutionality of certain laws or actions based on knowledge of the Constitution and over 200 years of legal precedent, not to bring their personal perspective or their life history as a context to interpret the Constitution. The job should be extremely forensic. There should be very little scope to bring in your own personal feelings or life history into the judging process, because you would also bring your personal biases.
If she is being brought on to the court to provide a black woman’s perspective, then will this new justice always lean toward or side with the minority group in the cases that she hears? Will she always lean toward or side with the woman? If the answer is, ‘no’, she will not be influenced by the side of women or minorities in the cases she hears, that she will look beyond race and gender which is what she supposed to do, then you are negating the very reason why Joe Biden has limited his pool of candidates to a black and woman in the first place. But if she is indeed going to allow her race and gender to influence her decisions, she will be violating the impartiality needed to be a Supreme Court Justice.
The goal is to nominate the most qualified candidate of all people. If you were having open heart surgery, would you limit your search for the best, most qualified doctor out of 7% of the population, or would you search to find the best doctor out of 100% of the population? You are most likely to find the most qualified doctor by looking at 100% of the doctors, and we are most likely to find the most qualified Supreme Court Justice by looking at 100% of the candidates, and a black woman may very well end up being the best choice, but we won’t know it unless the only criteria used to nominate her is the most qualified candidate available.
Judd Garrett is a graduate from Princeton University, and a former NFL player, coach, and executive. He has been a contributor to the website Real Clear Politics. He has recently published his first novel, No Wind.