On Selecting a Supreme Court Nominee: Part II

In Part I of this post, I noted President Joe Biden’s pledge to nominate an African American woman jurist to replace retiring liberal-leaning Associate Supreme Court Justice Stephen Breyer; what follows is what I would suggest if advising Mr. Biden.  I believe that this is the first time that I have substantively modified a post’s Part II after publishing Part I.

I would start here:  although the nominee will certainly be an extremely able lawyer and jurist with an established record of quality, since no liberal nominee put forth by Mr. Biden and ultimately confirmed by the Senate, whether conciliatory or provocative by nature or philosophy, is going to meaningfully affect the Court’s conservative tilt, divining shades of ability among a distinguished group is not the most important consideration.

I would venture that the top objective in this process is assessing how to best leverage the nomination to Democrats’ advantage in the midterm elections.  Stanching midterm Democratic losses is vital; although there are exceptions, such as U.S. WY Rep. Liz Cheney and U.S. UT Sen. Mitt Romney, I would submit that in our current political environment, any victory by any generic Republican is a threat to our democracy.  I would suggest that there are seemingly two aspects of how this pick, if pursued adroitly, can assist Democrats’ prospects in the midterms:

 Mr. Biden needs to win.  A win in this most visible and controversial of arenas will shore up his image of competence, and redound to the benefit of the Democrats running in swing areas in 2022.  A loss would be devastating for his presidency and Congressional Democrats.  Thus, Mr. Biden’s team will need to clear whomever he picks beforehand with all 50 Democratic Senators.

Mr. Biden should want a fight.  This is a strategy used expertly by former President Trump during his term:  galvanizing your base and antagonizing your opponents through a decision that draws fire (as long as you win in the end).  Drawing right wing attacks on a black nominee seems an effective way to inspire what is currently a dispirited Democratic base for the upcoming midterm elections.  There are reports that the African American community is disgruntled because it doesn’t believe that D.C. Democrats have done enough for them.  Disgruntled voters don’t turn out.  This selection, although it will do little for the average black voter, will present that and all Democratic constituencies a rallying point.  Mr. Biden should want the Republicans to take the bait, and there are already clear indications that at least some of them will.  I have seen video snippets of right-wing commentators decrying the fact that Mr. Biden has narrowed his candidate field to black women.  Republican U.S. MS Sen. Roger Wicker reportedly recently stated, “The irony is that the Supreme Court is … hearing cases about … affirmative racial discrimination, while adding someone who is the beneficiary of this sort of quota.”  Republican U.S. TX Sen. Ted Cruz has reportedly called Mr. Biden’s promise to appoint a black woman “offensive.”  These types of comments have racial overtones, and play into the President’s hands.

In the previous draft of Part II, I suggested that assuming that from a wholistic standpoint, the finalists had substantially similarly impressive legal qualifications without disqualifiers, to provoke a fight Mr. Biden should name one of the more legally progressive finalists, but not the most progressive finalist, provided that the nominee clearly possessed the ability to maintain poise and project a pleasant demeanor in the face of attack during the televised Senate confirmation hearings.  The theory was that as long as the nominee was ultimately confirmed, a Republican attack would galvanize a somewhat dispirited Democratic base and reflect badly on Republicans, provided that the nominee didn’t look like a wild-eyed progressive on TV.  This strategy seemingly cut against nominating U.S. SC District Judge J. Michelle Childs, one of the jurists listed as a candidate in initial reports, who while liberal is reportedly more moderate than some of the other potential candidates and, since she already has the expressed support of Republican U.S. SC Sens. Lindsay Graham and Tim Scott, is perhaps the least likely candidate to raise Republican hackles.  Nevertheless – while I have no real knowledge of the talents, records, or relative progressive inclinations of any of the other potential finalists – I’m warming to Judge Childs.  What shifted my opinion was an ABC News/Ipsos poll out this week indicating that 76% of Americans – and 54% of Democrats — believe that Mr. Biden should consider “all potential nominees” in making his selection rather than limiting his candidate field to black women jurists.  (I certainly understand these sentiments; I observed in Part I that although I understood Mr. Biden’s need to fulfill a campaign pledge, I philosophically disagree with “diversity” picks.)  This marked majority view obviously puts Mr. Biden and his team in a bit of a box.  If he doesn’t nominate a black woman, it will be perceived as a betrayal to at least some segments of the Democratic African American community; if he does, it will, however unfairly, lend grist for Republican claims that he has kowtowed to progressives.  Judge Childs seems to enable him to thread the needle.  She seems, from a brief review of what I could find of her record, eminently qualified with notable legal education and judicial experience, and has the endorsement of U.S. SC Rep. James Clyburn, an extremely influential supporter of Mr. Biden.  While the President cannot count on the support of Sen. Graham – the ultimate feather blowing in the political wind – Sen. Scott, the only African American Republican in the Senate, is made of sterner stuff, and it seems unlikely that a number of Mr. Scott’s Republican colleagues will want to be on the wrong side of him in a vote with racial overtones.  Things have been a little rocky for Mr. Biden lately, and a bipartisan confirmation will burnish his image for sensible bipartisanship with the target audience — Independents and moderate Republicans in swing areas — and limit the perception of tokenism that might otherwise attach, however unfairly, to any nominee confirmed strictly along party lines.  At the same time, while I don’t doubt that Senate Republican leadership, knowing that a liberal jurist is ultimately going to be placed on the Court, will want to avoid aggressive attacks against a black woman that will inevitably have a tinge of racism and will inspire the Democratic base, I just don’t think that a lot of Republicans will be able to help themselves.  Their and right-wing media outlets’ excesses are likely to offend Independents, make moderate Republicans uneasy, and inflame Democrats.  By selecting Judge Childs, Mr. Biden may be able to have his cake and eat it, too – as long as she is confirmed

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