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. 

As all who care are aware, liberal-leaning Associate Supreme Court Justice Stephen Breyer recently announced that he is retiring from the Court at the end of its term in June.  President Joe Biden has already indicated that he intends to nominate an African-American woman to Justice Breyer’s seat, fulfilling a campaign pledge.  I have seen electronic and print media accounts listing U.S. Court of Appeals Judge for the District of Columbia Circuit Ketanji Brown Jackson, 51, California Supreme Court Justice Leondra Kruger, 45, U.S. SC District Judge Julianna Michelle Childs, 55, U.S. Court of Appeals Judge for the Seventh Circuit (Chicago) Candace Rae Jackson-Akiwumi, 43, and U.S. Court of Appeals Judge for the Second Circuit (New York) Eunice Cheryl Lee, 51, as potential nominees.  The names of other black women jurists will undoubtedly surface.  I have no knowledge of any of these candidates, but have seen brief reports that Justice Kruger and Judge Childs are relatively more moderate (i.e., less progressive) in their judicial philosophies.  U.S. SC Rep. James Clyburn, an extremely influential supporter of Mr. Biden, has already stated his support for Judge Childs.  U.S. SC Republican Sens. Lindsay Graham and Tim Scott have also already announced their support for Judge Childs, seemingly all but ensuring that absent now-unforeseen factors, she would have a straightforward and relatively uncontentious Senate confirmation process.

In past notes addressing other Presidential nominations, I have set forth an admittedly simple – and some would suggest, in these partisan days, archaic  😉 — two-factor framework that I submit that each Senator should apply when determining whether to vote to confirm a nominee:   Is the nominee objectively qualified for the position?  If so, is there any other objective factor that should nonetheless disqualify him/her from the position for which s/he has been nominated (e.g., established current drug abuse problem)?  Since the Constitution provides our President the power to nominate whom s/he considers appropriate, I don’t believe that a nominee’s substantive philosophies or policy positions (if within the bounds of law) should be part of the equation.  I would now add a third factor, addressed further in Part II of this note, which shouldn’t be necessary but is, given the mindlessly-contentious environment in which we exist today:  a candidate’s ability to maintain poise in the face of attack, at least during the televised Senate confirmation hearings.

As I indicated ad nauseam in these pages in years past, I consider then-Senate Majority Leader Mitch McConnell’s scuttling of former President Barack Obama’s nomination of then-Judge Merrick Garland to the Supreme Court to have been a despicable dereliction of duty.  At the same time, while there are a thousand things for which I fault former President Donald Trump, his Supreme Court nominations are not among them.  During his term he was presented with three Supreme Court vacancies; it was his role under the Constitution to present the Senate with nominees; in accord with his political preferences, his choices were extremely judicially conservative, but no one questions their judicial competence. 

An aside:  I philosophically disagree with “diversity” picks.  I believe that a President should nominate the candidate, without regard to factors of gender, race, ethnicity, creed, sexual persuasion, or such like, that s/he thinks is most able and suited (albeit liberal or conservative, aligned with the inclinations of the given President) for each of our respective most sophisticated governmental posts.  That said, my sentiments on this issue and their underlying rationales are much broader than Presidential nominations and are better left to another note.  Having pledged during the campaign to nominate a black woman to the Supreme Court if he was elected, it is both the appropriate and politically expedient course for Mr. Biden, although his having so explicitly narrowed the candidate field will inevitably make race a focal point of this nomination exercise.

As in all these processes, the Administration will ultimately narrow the field to a few liberal-leaning jurist finalists. The vetting process will undoubtedly involve grilling each candidate about embarrassing incidents that might not appear on a background check.  Any candidate able enough to warrant nomination has to know that if there are any such incidents in her past, the Republicans will find them.  Even if she is ultimately confirmed, any foreseeable possibility that a stigma would be attached to her during the confirmation process akin to those borne by Associate Supreme Court Justices Clarence Thomas and Brett Kavanaugh would make any sensible person doubt that the game is worth the candle.  Less important but notable:  determining that she has no peccadillos, such as a past college romance with her school’s campus Republican president, that will inflame progressives always looking for a reason to be offended and more than willing to bite their own.

The yammering has clearly already begun from the right and the left regarding the qualities each expects in the nominee.  In order to keep these posts to manageable length, I’ll defer what I would recommend if advising Mr. Biden to Part II.

Posts on politics are like candy:  easy to write, mostly instinct [and thus, if such is possible, perhaps even more rife with Noise than other notes entered here  ;)].  What follows are reactions on three events we can or might anticipate in 2022, and what might result from them.

The almost certain:  that the House of Representatives’ Select Committee to Investigate the January 6 Attack on the United States Capitol will issue a report setting forth damning evidence showing that in an attempt to retain power, former President Donald Trump and his traitorous cohort sought to overturn the results of a free and fair election and instigated the Capitol insurrection.  I believe that the political ramifications of such a report will be … nil.  While I absolutely support the vital work that the Committee is doing, those citizens with – to paraphrase the Lord – eyes to see and ears to hear already know that Mr. Trump and his acolytes are guilty of sedition.  Those who willfully and steadfastly reject this fundamental and blatantly obvious truth will be unmoved by whatever the Committee brings forth. 

The seemingly probable:  that at some point before June, 2022, the Supreme Court will overturn Roe v. Wade and declare that regulation of women’s reproductive rights are best left to the several states.  If such a decision is handed down, it takes no prescience to opine that within the sixty days thereafter, most or all states with Republican governors and legislatures will outlaw abortion within their jurisdictions, either de jure or de facto.  On a purely political handicapping basis, I will venture that if such a holding obtains, it will provoke such a paroxysm of liberal and progressive outrage and generate sufficient unease among Independents and Republican moderates that Democrats, despite all historical trends and the way 2022 political winds now appear to be blowing, will retain their majorities in Congress.  It would be a fitting and final irony to the career of U.S. KY Sen. Mitch McConnell if the hyper-partisan manner in which he wielded his U.S. Senate leadership to place an arch conservative majority on the Supreme Court prevented him from ever regaining what he most desires:  majority leadership in the U.S. Senate.

The perhaps possible:  repeating reflections that I’ve already entered in these pages, that U.S. WY Rep. Liz Cheney, whether or not she retains her seat in the House of Representatives in the 2022 elections, declares her candidacy for the presidency of the United States in 2024.  She has been vilified in and ostracized by her own party – for having the guts to speak the truth – but she remains a Republican.  (I admire U.S. IL Rep. Adam Kinzinger, but he doesn’t have enough political gravitas to mount a credible presidential campaign.)  Since 1950, Dwight Eisenhower, Richard Nixon, Ronald Reagan and Donald Trump each won the Republican nomination and the presidency while not holding any elective office.  Ms. Cheney’s presence in the Republican nomination race, whether or not Mr. Trump chooses to run again, would create a sufficient schism in the Republican ranks that I would suggest – if the Democrats put up anybody reasonable [who might be “reasonable” to be left to a post on a later date ;)] — it will be difficult for Republicans to sufficiently repair their rupture in enough swing states to claim the presidency.  (Although Ms. Cheney would seemingly have no realistic prospect of securing the 2024 Republican nomination if Mr. Trump runs, her prospects against a field of Trump Wannabes, who would split the pro-Trump vote in the early primaries, are actually a bit intriguing – a reverse of the strategy Mr. Trump himself used to win the Republican nomination in 2016.)  If Mr. Trump runs, debates between him and Ms. Cheney would literally be the most arresting television of all time.  If he doesn’t, Ms. Cheney’s presence on a debate stage would at a minimum require each Trump Wannabe seeking Mr. Trump’s mantle to declare whether s/he believed that the 2020 election was stolen from Mr. Trump and whether the Capitol events of January 6 were an insurrection or a tourist excursion.  In this scenario, if a Trump Wannabe ultimately prevails, it’s hard for me to believe that a sufficient number of Independents and Republican moderates in enough swing states will countenance voting for a candidate that they know is either a liar or a fool for the Republican to win the White House – assuming, again, that Democrats give them a reasonable alternative (and assuming, of course, that swing state Republican governors and legislatures don’t use their newly-minted election laws to award their Electoral College votes to the Republican notwithstanding their states’ actual vote totals).

‘Nuff said.  Omicron – although by virtually all accounts, not mortally dangerous to those vaxxed and boosted – lurks.  Although maintaining protections is now moving from exasperating to aggravating, stay safe.

For those not aware, Pew Research Center (“Pew”) has recently published a “political typology” that it says “… sorts Americans into cohesive, like-minded groups based on their values, beliefs, and views about politics and the political system.”  A link to its conclusions is set forth below.  Pew lists nine groups, four leaning or avidly Democratic, four leaning or avidly Republican, with one unaffiliated “Stressed Sideliners” (the group that Pew nonetheless observes still “… tend[s] to fall close to the average American on many issues”).  Pew notes in its piece that there is actually a fairly wide divergence in views between the different groups that respectively consider themselves – either tightly or loosely – affiliated with the same political party.  What I found as interesting was the finding that there was at least some convergence in the views of groups that for the most part wildly differed.  In Pew’s descriptions of the beliefs of each of the nine groups, and no matter how troubling I might have found the majority of a group’s views, there was at least one position held by each segment with which I agreed.  At the same time, no one fits neatly into one mold; despite being placed in the “Democratic Mainstay” group after taking Pew quiz, I, apparently unlike the typical Democratic Mainstay, don’t “feel particularly warm toward Democrats.”

Pew’s results did underscore for me an impression that I’ve had for some time:  while the chasm of cultural issues will always separate them, Progressives and Trumplicans think very similarly in some areas; I would venture that both favor higher taxes on the wealthy and restrictive trade policies, and have relatively lesser interest in America’s maintenance of its interests across the world. Each of these positions is a marked deviation from the views held by their respective “mainstream” party mates.     

The second link is to Pew quiz that enables one to determine within which of its nine political groupings one belongs.  Enjoy.

At this point, it take no political prescience to predict that Republican Virginian Gubernatorial candidate Glenn Youngkin has a good chance to defeat his Democratic opponent, former Virginia Governor and longtime Clinton aide Terry McAuliffe, in Tuesday’s Virginia Gubernatorial race.  The polling trends currently favor Mr. Youngkin; in a state particularly influenced by national politics, Mr. McAuliffe’s fortunes cannot help but be affected by President Joe Biden’s dropping favorability ratings, that Congressional Democrats currently don’t look like they can run a two-car funeral, and the inevitable voter backlash immediately following presidential elections against whichever party then occupies the White House.  I would suggest that there is, also, the visceral.  Looking at pictures of Messrs. Youngkin and McAuliffe, an observation occurred to me from one of the blizzard of books I have read over the years describing the 1960 Kennedy-Nixon campaign:  that in an era when Americans were migrating from the east to the west coast, and so many seemingly marvelous new things were being advertised and brought to the American people – televisions, dishwashers, automatic vehicle transmissions, instant coffee ;), toothpastes with new and improved formulas to make one’s teeth gleam – John Kennedy – exuding vigor and a bright smile as contrasted with the old, bald men of both parties who had run the country for decades — was aligned with America’s aspirations as he proclaimed a New Frontier, that we needed to get the country moving again  … while Richard Nixon was in effect left to argue that the old ways were still good.

The reaction of someone very close to me, when looking at a picture of Mr. McAuliffe, was that he “looked tired.”  Mr. Youngkin – who, from a handicapping standpoint, has seemingly done a good job maintaining Trumplicans’ support without embracing former President Donald Trump in a way that antagonizes and energizes those Virginians who detest Mr. Trump – looks young and vital.  I consider President Bill Clinton the best pure politician of my lifetime; one of his most-quoted observations is, “Campaigns are about the future.”  Putting aside the fact that if a Virginian, I would most certainly vote for Mr. McAuliffe, to me he looks like yesterday.