From the Daily Mail:
Joe Biden reportedly promised House Majority Whip Jim Clyburn during the 2020 campaign that he would nominate a black woman to the Supreme Court – something that angers Republicans who claim a selection should not be based on race or gender.
Democrats, however, claim it’s about time that a black woman serves on the Supreme Court after news emerged prematurely Wednesday that liberal Justice Stephen Breyer is retiring.
Biden performed poorly in the Iowa caucuses and New Hampshire primaries and needed a boost in South Carolina in February 2020 to help clinch the nomination to take on Donald Trump.
Clyburn, who previously chaired the Congressional Black Caucus, offered his endorsement but with a caveat – that the then-candidate publicly pledge to place a black woman on the Supreme Court should he get the chance in his tenure.
Journalists Jonathan Allen and Amie Parnes detail in their book Lucky that Clyburn pow-wowed with Biden during a break in the Democratic debate on February 25, 2020. The lawmaker was becoming increasingly frustrated that Biden had not promised on the debate stage to nominate a black female Supreme Court justice after speaking on the issue the night before.
Allen explained Clyburn’s words to Biden at the time: ‘He says, ‘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.’
Clyburn told CNN on Wednesday that he did inform Biden he should address the issue of no black woman ever serving on the Supreme Court as a way to bolster his support among the black community – especially in South Carolina. …
Well, that’s old time politics, with an emphasis on “old.” Conceding a Supreme Court nomination in return for an endorsement has been done before. It’s much like the 1824 “Corrupt Bargain” between J.Q. Adams and Henry Clay over the Secretary of State job that kept Andrew Jackson out of the White House for four years: basic politics.
The specific problem with this bargain was a more subtle one: Kingmaker Clyburn is a couple of years older than even Biden, but is still serving as the third-ranking Democrat in the House. So he has a vested interest in not taking a gimlet eye to whether a fellow old-timer like Biden is still up to the job.
As for the affirmative action implicit in Biden’s bargain, sure, but let’s keep in mind that Supreme Court nominations are not really all that much like affirmative action in normal jobs. Supreme Court openings are so rare and so desirable that a President can likely come up with somebody plausible no matter how restrictive your preferred demographic. G.H.W. Bush even came up with a satisfactory black Republican.
In contrast, typical selection is a statistical question under conditions of scarcity, so affirmative action has a much different impact. You shouldn’t reason from affirmative action at where you work to the Supreme Court, and, more importantly, Supreme Court justices shouldn’t reason from Supreme Court–style affirmative action to the rest of America.
An interesting question about a Supreme Court justice is: How important is competence? It’s embarrassing for a lesser court judge to repeatedly get overturned by higher courts, but when you are on the highest court that can’t happen.
Presumably, having a smart guy like Breyer on Team Democrat might benefit the team in the occasional argument. And it could even be that a Breyer would have more foresight about what’s good for the country than a Sotomayor. But most of the time, Supreme Court decisions come down to whether Team Democrat is bigger or smaller than Team Republican, so it’s hard to see competence being all that crucial in a nominee.
In contrast, competence matters for sure in tens of millions of other jobs.
