American Consequences - June 2021

BIDEN HIS TIME? Biden actually chaired the Judiciary Committee during the Robert Bork and

youngest of whom is pushing 70. That’s no doubt why his first three circuit nominees (and four of six total) are black women, notably Ketanji Brown Jackson, a 50‐​year‐​ old federal judge who was just promoted to Attorney General Merrick Garland’s old seat on the D.C. Circuit – basically the judiciary’s AAA level. Further, of Biden’s judicial nominations so far, there’s not a single white man. That too shouldn’t be surprising, because Democratic presidents have long focused on “diversity” (even if it wasn’t always called that). As Jimmy Carter said in 1978, “If I didn’t have to get Senate confirmation of appointees, I could tell you flatly that 12% of my judicial appointments would be black and 3% would be Spanish‐​speaking, and 40% would be women, and so forth.” Seeing how Barack Obama was foiled in his attempt to appoint more racial minorities by American Bar Association (“ABA”) warnings that many candidates weren’t qualified, Biden ended the group’s pre‐​screening role. One underreported benefit of ending ABA pre-screening is the freedom to nominate more public defenders, criminal-defense attorneys, JAGs, and other lawyers with nontraditional backgrounds, a long‐​overdue move. Indeed, a byproduct of Democrats’ delicate search for both diversity and quality is that many appointees (of all skin tones) have been either prosecutors or corporate lawyers – not exactly the progressive avatars that the party’s base demands. Moreover, given that the legal profession has a leftward tilt, Democratic presidents have more room for error than their Republican

Biden also pledged to put a black woman on the Supreme Court, which rather narrows the pool of plausible candidates because there are exactly four black, female federal circuit judges, the youngest of whom is pushing 70. – and two years ago called Anita Hill to apologize for not doing more for her cause. Then, as the clock wound down on the George H.W. Bush presidency, Biden gave a speech urging him not to fill any high court vacancies arising before the 1992 election. He would awkwardly walk back that speech in 2016, leading to debate over the “Biden rule.” Clarence Thomas sagas. His sustained attacks on the former contributed as much to Bork’s defeat as Ted Kennedy’s demagoguery, while he attacked the latter for being too protective of individual rights and made his hearings into what Thomas called a “high-tech lynching” In his last presidential run, Biden said he’d appoint judges who favor a “living” Constitution but declined to release a list of potential nominees because he knew they wouldn’t be popular. Biden also pledged to put a black woman on the Supreme Court, which rather narrows the pool of plausible candidates because there are exactly four black, female federal circuit judges, the

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June 2021

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