George Washington University Law School professor Jonathan Turley noted Wednesday that President Joe Biden’s criteria for a new Supreme Court justice — that she be black and female — are “unconstitutional” in other contexts, according to the Court itself.
Turley was commenting in the wake of news earlier in the day that Justice Stephen Breyer, 83, would be retiring at the end of the current Court term — an announcement that apparently took Breyer himself somewhat by surprise.
Biden promised during the 2020 Democratic Party presidential primary to nominate a black and female justice to the Court at the first opportunity. Turley wrote at the time:
In his debate with Bernie Sanders, Joe Biden made two pledges to voters and asked his opponent to do the same to nominate only a black woman for the next open Supreme Court seat and to choose a woman as his vice president. Even with identity politics, the pledge to impose a gender and race requirement for the next Supreme Court nominee is 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. Indeed, the Supreme Court has declared that such race or gender conditions are strictly unconstitutional for admission to public colleges.
The pledges that Biden has made 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. Justices, however, 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.
Imposing an absolute requirement that a nominee be a particular gender and race is effectively an affirmative action pledge. It is precisely what the Supreme Court already declared to be unconstitutional discrimination.
Turley reiterated his criticism on Twitter on Wednesday:
Jen Psaki just reaffirmed that the President will only consider a black woman for the next nomination — a threshold gender and race condition that the Court itself has found unconstitutional for schools and unlawful for private businesses. https://t.co/uzc5jInAlg
— Jonathan Turley (@JonathanTurley) January 26, 2022