Stephen Breyer retiring
January 26, 2022 3:20 PM Subscribe
Justice Stephen Breyer to retire from US Supreme Court. Justice Breyer’s retirement, at 83, will give President Biden the opportunity to name a new justice.
About damn time. For all his genuine nobility of mind, Breyer's brand of cautious institutionalism was ineffective, and his faith in the Court as an institution profoundly misplaced. One hopes for an excellent replacement -- and by excellent, I mean someone not from an impossibly rarified corporate or government law background, but someone with deep experience fighting for the poor, for minorities, for women, for voting rights, for the environment. Ultimately, though, one hopes for a politics that increasingly disempowers the Court, and centers power in democratic governance (small and large D) by majorities in House and Senate and away from an undue focus on legal proceduralism as a political tool. Mass movement organizing is always ultimately the source of change, and a more democratic United States is always the hope for me -- our wars over the Court, important though they are, also speak to its misplaced importance. Democracies should not be governed by nine ancient law wizards.
posted by SandCounty at 3:33 PM on January 26, 2022 [47 favorites]
posted by SandCounty at 3:33 PM on January 26, 2022 [47 favorites]
if a justice who planned to retire
aspired to prod voters' urgent desire
to oust all the cheats
from congressional seats
could a statement in january be fire?
posted by 20 year lurk at 3:33 PM on January 26, 2022 [8 favorites]
aspired to prod voters' urgent desire
to oust all the cheats
from congressional seats
could a statement in january be fire?
posted by 20 year lurk at 3:33 PM on January 26, 2022 [8 favorites]
Here's hoping this gets handled with some urgency (and doesn't derail pressure for expanding the court). I'd hate for us to get into summer with the nomination still hanging overhead.
posted by CrystalDave at 3:36 PM on January 26, 2022 [5 favorites]
posted by CrystalDave at 3:36 PM on January 26, 2022 [5 favorites]
Nonnegotiable
i) Liberal (minimum), progressive (better yet) -anticarceral/restorative-justice/counter-externality-focused (ideal)
ii) Effective
iii) Long-lived and long-functional
Get it done, dems.
posted by lalochezia at 3:44 PM on January 26, 2022 [6 favorites]
i) Liberal (minimum), progressive (better yet) -anticarceral/restorative-justice/counter-externality-focused (ideal)
ii) Effective
iii) Long-lived and long-functional
Get it done, dems.
posted by lalochezia at 3:44 PM on January 26, 2022 [6 favorites]
.@SenFeinstein doesn't see a rush to confirm a Breyer replacement: “With six months until Justice Breyer departs the court, the Senate Judiciary Committee will have ample time to hold hearings on President Biden’s nominee."
posted by Glegrinof the Pig-Man at 3:45 PM on January 26, 2022 [6 favorites]
posted by Glegrinof the Pig-Man at 3:45 PM on January 26, 2022 [6 favorites]
>I mean someone not from an impossibly rarified corporate or government law background, but someone with deep experience fighting for the poor, for minorities, for women, for voting rights, for the environment.
Judge Ketanji Brown Jackson of the United States Court of Appeals for the District of Columbia Circuit appears to be a frontrunner.
posted by mikelieman at 3:46 PM on January 26, 2022 [14 favorites]
Judge Ketanji Brown Jackson of the United States Court of Appeals for the District of Columbia Circuit appears to be a frontrunner.
posted by mikelieman at 3:46 PM on January 26, 2022 [14 favorites]
That's good to know, because there's one more thing on my nonnegotiable list:
iv) Black woman
Dianne Feinstein is 88 goddamn years old.
There's a serious chance that 2022 election results will be litigated all the way to the SC.
And if Dems manage to lose the Senate...
Much like Paula Abdul and Debbie Harry, we need to rush rush.
posted by box at 3:49 PM on January 26, 2022 [12 favorites]
iv) Black woman
Dianne Feinstein is 88 goddamn years old.
There's a serious chance that 2022 election results will be litigated all the way to the SC.
And if Dems manage to lose the Senate...
Much like Paula Abdul and Debbie Harry, we need to rush rush.
posted by box at 3:49 PM on January 26, 2022 [12 favorites]
How exciting, I can't wait to see how the democrats will bungle this one.
"We thought this was our opportunity to reach across the aisle and nominate a republican."
"Mr. McConnell makes an excellent point that it's too dangerous to nominate a justice during the pandemic."
"Jen Psaki tells me you people don't deserve a new justice, so maybe next year, if you're good."
posted by evilDoug at 3:57 PM on January 26, 2022 [45 favorites]
"We thought this was our opportunity to reach across the aisle and nominate a republican."
"Mr. McConnell makes an excellent point that it's too dangerous to nominate a justice during the pandemic."
"Jen Psaki tells me you people don't deserve a new justice, so maybe next year, if you're good."
posted by evilDoug at 3:57 PM on January 26, 2022 [45 favorites]
Osita Nwanevu: Mr. President: It’s time
posted by Going To Maine at 3:59 PM on January 26, 2022 [2 favorites]
posted by Going To Maine at 3:59 PM on January 26, 2022 [2 favorites]
Wow, evilDoug, that's an unhelpfully cynical take.
I hope Biden nominates someone good, and I hope the wafer-thin Democratic majority is able to confirm quickly.
Biden's put some great, great people in the cabinet, which gives me encouragement that he'll name someone good to this incredibly important position.
posted by kristi at 4:03 PM on January 26, 2022 [60 favorites]
I hope Biden nominates someone good, and I hope the wafer-thin Democratic majority is able to confirm quickly.
Biden's put some great, great people in the cabinet, which gives me encouragement that he'll name someone good to this incredibly important position.
posted by kristi at 4:03 PM on January 26, 2022 [60 favorites]
How long till Sinema blocks it in order to sweeten her post Senate lobbying and consulting career?
posted by nestor_makhno at 4:07 PM on January 26, 2022 [8 favorites]
posted by nestor_makhno at 4:07 PM on January 26, 2022 [8 favorites]
Much like the Humbug from the Phantom Tollbooth, Bill Kristol rushes to be the first to produce the worst political forecast in the universe.
posted by delfin at 4:10 PM on January 26, 2022 [16 favorites]
posted by delfin at 4:10 PM on January 26, 2022 [16 favorites]
If by bungle you mean we as democrats finish casting our Summon Greater Demon spell and then we could, in theory, have an barlgura or shadow demon seated on the bench for at least an hour.
posted by NoThisIsPatrick at 4:10 PM on January 26, 2022 [1 favorite]
posted by NoThisIsPatrick at 4:10 PM on January 26, 2022 [1 favorite]
I hope they replace him with someone who has a limitless appetite for fighting hard and losing anyway.
posted by fleacircus at 4:17 PM on January 26, 2022 [2 favorites]
posted by fleacircus at 4:17 PM on January 26, 2022 [2 favorites]
Much like the Humbug from the Phantom Tollbooth, Bill Kristol rushes to be the first to produce the worst political forecast in the universe.
Wow.
Jesus.
I mean: even for bad Bill Kristol takes that’s just…fuck, man.
posted by charmedimsure at 4:18 PM on January 26, 2022 [7 favorites]
Wow.
Jesus.
I mean: even for bad Bill Kristol takes that’s just…fuck, man.
posted by charmedimsure at 4:18 PM on January 26, 2022 [7 favorites]
Man, can we get Obama in there? Either one?
posted by olykate at 4:19 PM on January 26, 2022 [20 favorites]
posted by olykate at 4:19 PM on January 26, 2022 [20 favorites]
How long till Sinema blocks it in order to sweeten her post Senate lobbying and consulting career?
I've remember hearing she's running for president.
posted by Rubbstone at 4:22 PM on January 26, 2022
I've remember hearing she's running for president.
posted by Rubbstone at 4:22 PM on January 26, 2022
optimist me: good thing it's early enough in Biden's term that the GOP can't stall like they did with Garland under Obama.
realist/pessimist me: ...shit, i wish i believed that. they'll come up with something to block whomever he nominates. i can't put anything past the GOP at this point and it's hard not to be cynical about how this will play out.
posted by hollisimo at 4:23 PM on January 26, 2022 [14 favorites]
realist/pessimist me: ...shit, i wish i believed that. they'll come up with something to block whomever he nominates. i can't put anything past the GOP at this point and it's hard not to be cynical about how this will play out.
posted by hollisimo at 4:23 PM on January 26, 2022 [14 favorites]
Yes, it's cynical to suggest that the party that offered $50,000 in student debt relief pre-election, whittle that down to $10,000, then end up giving nothing, may bungle a Supreme Court nomination. Or the party that nearly lost the white house to a goddamned clown car insurrection, do the absolute minimum to hold the insurrectionists accountable.
Or the party that came into power with fucking concentration camps full of people who's only crime was wanting a better life, decline to close those camps.
Or the party who could have ended the fucking pandemic, sit on their hands because it's better for business interests.
So yeah, maybe I'm a little cynical.
posted by evilDoug at 4:26 PM on January 26, 2022 [72 favorites]
Or the party that came into power with fucking concentration camps full of people who's only crime was wanting a better life, decline to close those camps.
Or the party who could have ended the fucking pandemic, sit on their hands because it's better for business interests.
So yeah, maybe I'm a little cynical.
posted by evilDoug at 4:26 PM on January 26, 2022 [72 favorites]
the party that nearly lost the white house to a goddamned clown car insurrection
Pretty sure the other party was at fault on that one.
posted by swift at 4:27 PM on January 26, 2022 [11 favorites]
Pretty sure the other party was at fault on that one.
posted by swift at 4:27 PM on January 26, 2022 [11 favorites]
I think it's unlikely to be blocked by Manchin or Sinema, but unlikely isn't impossible, and if the last few years is any guide, unlikely is more likely than one might think.
posted by tclark at 4:27 PM on January 26, 2022 [1 favorite]
posted by tclark at 4:27 PM on January 26, 2022 [1 favorite]
I mean, goddamn democrats! I want to fucking vote for you. Throw me a goddamned bone.
posted by evilDoug at 4:29 PM on January 26, 2022 [20 favorites]
posted by evilDoug at 4:29 PM on January 26, 2022 [20 favorites]
That Kristol Twitter thread…wow. And living here in Utah, I thought I’d already read every terrible Romney fanfic out there.
On another matter: from what I understand Sinema and Manchin have voted to confirm most of Biden’s judicial noms so far. Will they behave the same way for what they know is literally the only nomination their constituents will pay any attention to? I hate to say it, but with those two I fear the (TV) camera adds ten degrees of shittiness.
posted by armeowda at 4:31 PM on January 26, 2022 [5 favorites]
On another matter: from what I understand Sinema and Manchin have voted to confirm most of Biden’s judicial noms so far. Will they behave the same way for what they know is literally the only nomination their constituents will pay any attention to? I hate to say it, but with those two I fear the (TV) camera adds ten degrees of shittiness.
posted by armeowda at 4:31 PM on January 26, 2022 [5 favorites]
A little off topic, but it's as good a time as ever to revisit Bill Kristol being pied.
posted by Larry David Syndrome at 4:40 PM on January 26, 2022 [3 favorites]
posted by Larry David Syndrome at 4:40 PM on January 26, 2022 [3 favorites]
"Mr. McConnell makes an excellent point that it's too dangerous to nominate a justice during the pandemic."
I was thinking: We are forced to accede to McConnell's demand that running confirmation hearings less than two years before the next round of Senate elections just isn't fair
posted by supercres at 4:42 PM on January 26, 2022 [5 favorites]
I was thinking: We are forced to accede to McConnell's demand that running confirmation hearings less than two years before the next round of Senate elections just isn't fair
posted by supercres at 4:42 PM on January 26, 2022 [5 favorites]
@LaurenceHurley (of Reuters): Reuters: Senate Democrats intend to confirm a Biden Supreme Court nominee on same timeframe as the one-month timetable used by Republicans to appoint Justice Barrett, per source familiar
@SteveMorris (of The Recount / MMFA): This is an area where Manchin's ideal of a 1980s Sorkin-fantasy Senate actually works to Biden's advantage - his preference is for routine, non-ideological confirmations. Last month he voted to confirm a Circuit Judge who publicly called Kavanaugh “morally bankrupt”
@Donny Ferguson: Obama considered Kentanji Brown Jackson to replace Scalia, but nominated Garland instead when it became clear there wouldn't be a vote and any nominee would be a sacrificial lamb. Not only did she clerk for Breyer, many feel she's “owed” it.
@SeungMinKim (of The Washington Post): New - Yes, it is possible to do a confirmation process for a vacancy that is not yet empty, per senior Senate aides. Precedent as recent as 2020 shows how it is possible.
It’s possible to sometimes just take the W.
posted by Going To Maine at 4:49 PM on January 26, 2022 [21 favorites]
@SteveMorris (of The Recount / MMFA): This is an area where Manchin's ideal of a 1980s Sorkin-fantasy Senate actually works to Biden's advantage - his preference is for routine, non-ideological confirmations. Last month he voted to confirm a Circuit Judge who publicly called Kavanaugh “morally bankrupt”
@Donny Ferguson: Obama considered Kentanji Brown Jackson to replace Scalia, but nominated Garland instead when it became clear there wouldn't be a vote and any nominee would be a sacrificial lamb. Not only did she clerk for Breyer, many feel she's “owed” it.
@SeungMinKim (of The Washington Post): New - Yes, it is possible to do a confirmation process for a vacancy that is not yet empty, per senior Senate aides. Precedent as recent as 2020 shows how it is possible.
It’s possible to sometimes just take the W.
posted by Going To Maine at 4:49 PM on January 26, 2022 [21 favorites]
Personally, I’d nominate Obama just to see the pearls clutched by White Republicans turned into diamonds. Maybe to replace Thomas.
posted by JustSayNoDawg at 4:58 PM on January 26, 2022 [7 favorites]
posted by JustSayNoDawg at 4:58 PM on January 26, 2022 [7 favorites]
Borowitz is on it: Millions Bummed that It Wasn’t Clarence Thomas
posted by fuse theorem at 5:01 PM on January 26, 2022 [10 favorites]
posted by fuse theorem at 5:01 PM on January 26, 2022 [10 favorites]
Obama would turn it down. These are his years for cavorting with celebrities on Martha's Vineyard, he's earned it
posted by moorooka at 5:02 PM on January 26, 2022 [9 favorites]
posted by moorooka at 5:02 PM on January 26, 2022 [9 favorites]
supercres: I was thinking: We are forced to accede to McConnell's demand that running confirmation hearings less than two years before the next round of Senate elections just isn't fair
Isn't the next round of Senate elections, like, a few months away?
posted by clawsoon at 5:24 PM on January 26, 2022 [1 favorite]
Isn't the next round of Senate elections, like, a few months away?
posted by clawsoon at 5:24 PM on January 26, 2022 [1 favorite]
Given that there's another Presidential election just a few years down the road, I think we need to wait and let the voters decide.
posted by chasing at 5:35 PM on January 26, 2022 [2 favorites]
posted by chasing at 5:35 PM on January 26, 2022 [2 favorites]
Or the party who could have ended the fucking pandemic, sit on their hands because it's better for business interests.
There's plenty to criticize the Democratic Party for - from top to bottom - and I am holding my breath out of the same fears expressed by many here that Biden will somehow screw up this situation. But could we stop with the insane conspiracy theorizing about the pandemic? Once again, it's the Republicans who are behaving terribly.
posted by PhineasGage at 5:36 PM on January 26, 2022 [44 favorites]
There's plenty to criticize the Democratic Party for - from top to bottom - and I am holding my breath out of the same fears expressed by many here that Biden will somehow screw up this situation. But could we stop with the insane conspiracy theorizing about the pandemic? Once again, it's the Republicans who are behaving terribly.
posted by PhineasGage at 5:36 PM on January 26, 2022 [44 favorites]
Took about 10 years (or at least, one year) longer than he should have but FINALLY. I bet it's not fun being on the court these days as a 'liberal', and he should have resigned in 2012, but this will do. Now for Mitch to block a nominee until 2024. Sigh.
posted by dis_integration at 5:37 PM on January 26, 2022
posted by dis_integration at 5:37 PM on January 26, 2022
The best retirement for Breyer is obviously Anita Hill, Stacey Abrams AND Sherilynn Ifill.
posted by Dashy at 5:39 PM on January 26, 2022 [7 favorites]
posted by Dashy at 5:39 PM on January 26, 2022 [7 favorites]
Impeccable legal credentials and a proven judicial temperament. Everything else is negotiable...
posted by jim in austin at 5:46 PM on January 26, 2022 [2 favorites]
posted by jim in austin at 5:46 PM on January 26, 2022 [2 favorites]
Now for Mitch to block a nominee until 2024. Sigh.
Folks, Republicans are powerless to block Biden's nominee because Democrats control the Senate. Now, whether Dems shoot themselves in the foot is another matter.
posted by ultraviolet catastrophe at 5:58 PM on January 26, 2022 [12 favorites]
Folks, Republicans are powerless to block Biden's nominee because Democrats control the Senate. Now, whether Dems shoot themselves in the foot is another matter.
posted by ultraviolet catastrophe at 5:58 PM on January 26, 2022 [12 favorites]
Greta Thunberg. She's smart, the Constitution doesn't say she has to be a citizen, and she's the right age.
posted by dances_with_sneetches at 6:09 PM on January 26, 2022 [23 favorites]
posted by dances_with_sneetches at 6:09 PM on January 26, 2022 [23 favorites]
Folks, Republicans are powerless to block Biden's nominee because Democrats control the Senate.
Importantly, you cannot filibuster confirmations under current rules:
> There are, however, exceptions to the filibuster rule. Perhaps the most notable recent example pertains to presidential appointments. In 2013, Democrats changed the Senate rules to enable the confirmation of executive branch positions — including the cabinet — and of non–Supreme Court judicial nominees with a simple majority. Four years later, Senate Republicans expanded the change to include Supreme Court appointments. Both changes invoked what is known as the nuclear option, or an override of a rule to overcome obstruction by the minority.
Which means its really up to the 50 democratic Senators and VP to decide. There's less leeway to haggle over at least, since you cant attach a rider to an up/down vote.
posted by pwnguin at 6:13 PM on January 26, 2022 [6 favorites]
Importantly, you cannot filibuster confirmations under current rules:
> There are, however, exceptions to the filibuster rule. Perhaps the most notable recent example pertains to presidential appointments. In 2013, Democrats changed the Senate rules to enable the confirmation of executive branch positions — including the cabinet — and of non–Supreme Court judicial nominees with a simple majority. Four years later, Senate Republicans expanded the change to include Supreme Court appointments. Both changes invoked what is known as the nuclear option, or an override of a rule to overcome obstruction by the minority.
Which means its really up to the 50 democratic Senators and VP to decide. There's less leeway to haggle over at least, since you cant attach a rider to an up/down vote.
posted by pwnguin at 6:13 PM on January 26, 2022 [6 favorites]
Maybe we should wait until Democrats actually mess something up before saying how they've, as usual, messed it up?
Call me kooky but I predict a rapid and relatively smooth nomination.
posted by Justinian at 6:18 PM on January 26, 2022 [33 favorites]
Call me kooky but I predict a rapid and relatively smooth nomination.
posted by Justinian at 6:18 PM on January 26, 2022 [33 favorites]
Manchin and Sinema will refuse to confirm, Dems will be totally wrongfooted by this. There will either be a vacancy indefinitely, if the Dems elect to sit tight, or Manchin and Sinema will force the selection of a conservative justice. There will be bribery somewhere in the background.
posted by Frowner at 6:34 PM on January 26, 2022 [10 favorites]
posted by Frowner at 6:34 PM on January 26, 2022 [10 favorites]
Which means its really up to the 50 democratic Senators and VP to decide
At the last year has shown, we can only count on 48 votes. We don't have the numbers to pass anything, yet.
posted by They sucked his brains out! at 6:45 PM on January 26, 2022 [2 favorites]
At the last year has shown, we can only count on 48 votes. We don't have the numbers to pass anything, yet.
posted by They sucked his brains out! at 6:45 PM on January 26, 2022 [2 favorites]
Perhaps he should wait to retire until after the next election, surely Biden is a shoo-in. (too soon for RBG digs?)
posted by Dag Maggot at 6:47 PM on January 26, 2022
posted by Dag Maggot at 6:47 PM on January 26, 2022
> At the last year has shown, we can only count on 48 votes. We don't have the numbers to pass anything, yet.
What stops the other 48 from trying the same stunts? If a left of center but not fully Marxist judge is nominated why won't Bernie withold his vote?
posted by pwnguin at 6:55 PM on January 26, 2022 [3 favorites]
What stops the other 48 from trying the same stunts? If a left of center but not fully Marxist judge is nominated why won't Bernie withold his vote?
posted by pwnguin at 6:55 PM on January 26, 2022 [3 favorites]
Here's Matt Stoller of the BIG substack with an interesting take on Breyer's antitrust legacy.
posted by ropeladder at 6:56 PM on January 26, 2022 [2 favorites]
posted by ropeladder at 6:56 PM on January 26, 2022 [2 favorites]
Republicans can't filibuster a nominee? I guess you missed it when Schumer gave away the majority control of the Judiciary Committee.
posted by srt19170 at 7:07 PM on January 26, 2022 [4 favorites]
posted by srt19170 at 7:07 PM on January 26, 2022 [4 favorites]
If a left of center but not fully Marxist judge is nominated why won't Bernie withold his vote?
Because Bernie is not an idiot! He'll vote for whatever nominee Biden sends up unless Biden goes completely bonkers (which he won't).
posted by Justinian at 7:09 PM on January 26, 2022 [6 favorites]
Because Bernie is not an idiot! He'll vote for whatever nominee Biden sends up unless Biden goes completely bonkers (which he won't).
posted by Justinian at 7:09 PM on January 26, 2022 [6 favorites]
McConnell has been oddly quiet about this. Previously he was very quick to note that whether Republicans would block a nomination, but silence so far.
Which means he's plotting.
posted by Brandon Blatcher at 7:11 PM on January 26, 2022 [2 favorites]
Which means he's plotting.
posted by Brandon Blatcher at 7:11 PM on January 26, 2022 [2 favorites]
Question for the doomers: How many of the other 100+ judicial nominations that Biden has sent to the Senate have Manchin and Sinema blocked?
posted by Justinian at 7:11 PM on January 26, 2022 [5 favorites]
posted by Justinian at 7:11 PM on January 26, 2022 [5 favorites]
This is a bit bigger than the other ones - Manchin and Sinema wouldn't get the chance to grandstand and grift nearly so much with the smaller fish.
I dunno, if I'm wrong about this I won't exactly wring my hands and cry.
posted by Frowner at 7:29 PM on January 26, 2022 [3 favorites]
I dunno, if I'm wrong about this I won't exactly wring my hands and cry.
posted by Frowner at 7:29 PM on January 26, 2022 [3 favorites]
Republicans can't filibuster a nominee? I guess you missed it when Schumer gave away the majority control of the Judiciary Committee.
Forgive the block of text, but it’s probably worth quoting this part in full:
Forgive the block of text, but it’s probably worth quoting this part in full:
Well, in a little-noticed backroom deal that took more than a month to hammer out, McConnell and Senate Majority Leader Chuck Schumer agreed to a power-sharing plan in February that splits committee membership, staffs and budgets in half. (A full nonpartisan analysis from the Congressional Research Service regarding the current process for nominees is here.)posted by Atom Eyes at 7:31 PM on January 26, 2022 [8 favorites]
Why does this matter? If all 11 Republican members of the Judiciary Committee oppose Biden’s pick and all 11 Democrats back her, the nomination goes inert. (A pretty safe bet in a committee where at least half of the Republican members have White House ambitions of their own.) The nomination doesn’t die, but it does get parked until a lawmaker—historically, the Leader of the party—brings it to the floor for four hours of debate.
A majority of the Senate—51 votes, typically—can then put debate about the issue on the calendar for the next day. But that’s the last easy part. When the potential pick comes to the floor again, it’s not as a nomination. At that point, it’s a motion to discharge, a cloture motion that requires 60 votes. In other words, 10 Republicans would have to resurrect the nomination of someone already blocked in the Judiciary Committee.
Republicans can't filibuster a nominee? I guess you missed it when Schumer gave away the majority control of the Judiciary Committee.
It might not be as bad as that article says.
posted by paper chromatographologist at 7:34 PM on January 26, 2022 [8 favorites]
It might not be as bad as that article says.
posted by paper chromatographologist at 7:34 PM on January 26, 2022 [8 favorites]
The speculation about Harris from some pundits feels like they heard Biden planned to nominate a Black woman and they could only think of one.
posted by Emily's Fist at 7:36 PM on January 26, 2022 [46 favorites]
posted by Emily's Fist at 7:36 PM on January 26, 2022 [46 favorites]
I think that speculation (which is obviously galaxy brain level wrong) is more about getting Harris out of the VP spot so that Biden can put someone else in there.
posted by Justinian at 7:38 PM on January 26, 2022 [1 favorite]
posted by Justinian at 7:38 PM on January 26, 2022 [1 favorite]
Good lord people, take the W.
Biden will appoint someone, the Republicans will make pearl clutchy noises and yell all sorts of incomprehensibly hypocritical BS all the way to the vote, which they cannot block (only delay here and there.)
posted by elwoodwiles at 7:48 PM on January 26, 2022 [5 favorites]
Biden will appoint someone, the Republicans will make pearl clutchy noises and yell all sorts of incomprehensibly hypocritical BS all the way to the vote, which they cannot block (only delay here and there.)
posted by elwoodwiles at 7:48 PM on January 26, 2022 [5 favorites]
I'm pretty sure that Time article about Republicans being able to block the nominee is just wrong. The reporter who wrote it is getting pilloried on Twitter.
posted by ultraviolet catastrophe at 7:49 PM on January 26, 2022 [4 favorites]
posted by ultraviolet catastrophe at 7:49 PM on January 26, 2022 [4 favorites]
Looks like paper chromatographologist beat me to it.
posted by ultraviolet catastrophe at 7:50 PM on January 26, 2022
posted by ultraviolet catastrophe at 7:50 PM on January 26, 2022
The best retirement for Breyer is obviously Anita Hill, Stacey Abrams AND Sherilynn Ifill.
Hill's 65 (why wish her having to work, again, with the man who harassed her?!); Sherrilyn Ifill's 59; Stacey Abrams (48) is awfully busy, but there's another candidate in that family: her 47-year-old sister, Judge Leslie Abrams Gardner -- the first female black federal judge in Georgia, confirmed by the United States Senate on November 18, 2014, on a vote of 100-0.
posted by Iris Gambol at 7:51 PM on January 26, 2022 [30 favorites]
Hill's 65 (why wish her having to work, again, with the man who harassed her?!); Sherrilyn Ifill's 59; Stacey Abrams (48) is awfully busy, but there's another candidate in that family: her 47-year-old sister, Judge Leslie Abrams Gardner -- the first female black federal judge in Georgia, confirmed by the United States Senate on November 18, 2014, on a vote of 100-0.
posted by Iris Gambol at 7:51 PM on January 26, 2022 [30 favorites]
McConnell has been oddly quiet about this. Previously he was very quick to note that whether Republicans would block a nomination, but silence so far.
Which means he's plotting.
He just has to flip Manchin, who could still be pissy about the BBB pressure, or Sinema who did the McCain thumbs down after getting Turtle's attention.
posted by Slackermagee at 7:56 PM on January 26, 2022 [3 favorites]
Which means he's plotting.
He just has to flip Manchin, who could still be pissy about the BBB pressure, or Sinema who did the McCain thumbs down after getting Turtle's attention.
posted by Slackermagee at 7:56 PM on January 26, 2022 [3 favorites]
Judge Leondra Kruger is only 45! That's two years younger than 47.
Maybe a nice promising college student who could sit on the court for 60 years.
posted by Justinian at 7:56 PM on January 26, 2022 [3 favorites]
Maybe a nice promising college student who could sit on the court for 60 years.
posted by Justinian at 7:56 PM on January 26, 2022 [3 favorites]
I honestly can no longer tell if a lot of folks think Biden will fail to get anyone on the Court before November or if this is all just our regularly scheduled performative hand wringing and Dem scolding.
posted by Justinian at 7:58 PM on January 26, 2022 [21 favorites]
posted by Justinian at 7:58 PM on January 26, 2022 [21 favorites]
I personally hope the Biden administration creates a shortlist of half a dozen highly qualified, relatively young, progressive and diverse candidates to consider.
Then that they hide them all in one oversize robe with a mediocre white man's head sticking out of the top, nominate and confirm Justice Group, and their first day in the court they all pop out like SURPRISE MOTHERFUCKERS HOPE YOU LIKE LOSING CASES 10-5.
posted by Superilla at 7:59 PM on January 26, 2022 [67 favorites]
Then that they hide them all in one oversize robe with a mediocre white man's head sticking out of the top, nominate and confirm Justice Group, and their first day in the court they all pop out like SURPRISE MOTHERFUCKERS HOPE YOU LIKE LOSING CASES 10-5.
posted by Superilla at 7:59 PM on January 26, 2022 [67 favorites]
I'd like to make a serious comment about someone I don't want.
I've seen a few people online saying that "hey, Biden said he wanted to pick a black woman - Tish James would be perfect." So I wanted to speak up in response to this line of thought and say HELL NO, Y'ALL LEAVE TISH JAMES RIGHT HERE WHERE SHE IS, she is doing the Lord's work and you need to leave her to it.
posted by EmpressCallipygos at 8:02 PM on January 26, 2022 [3 favorites]
I've seen a few people online saying that "hey, Biden said he wanted to pick a black woman - Tish James would be perfect." So I wanted to speak up in response to this line of thought and say HELL NO, Y'ALL LEAVE TISH JAMES RIGHT HERE WHERE SHE IS, she is doing the Lord's work and you need to leave her to it.
posted by EmpressCallipygos at 8:02 PM on January 26, 2022 [3 favorites]
Tish James is 63 years old so the good news (for you) is that the odds of her getting nominated are approxately -721%.
posted by Justinian at 8:06 PM on January 26, 2022 [1 favorite]
posted by Justinian at 8:06 PM on January 26, 2022 [1 favorite]
I would really like an indigenious judge--it won't happen, but Justice Raquel Montoya-Lewis or Mark A. Montour would be nice
posted by PinkMoose at 8:13 PM on January 26, 2022 [2 favorites]
posted by PinkMoose at 8:13 PM on January 26, 2022 [2 favorites]
Stacey Abrams would be a good pick. But, again, Dems can't pass anything these days, so that won't happen.
posted by They sucked his brains out! at 8:22 PM on January 26, 2022
posted by They sucked his brains out! at 8:22 PM on January 26, 2022
If a left of center but not fully Marxist judge is nominated
lol, lmao
Biden will fail to get anyone on the Court before November or if this is all just our regularly scheduled performative hand wringing
Yes
posted by supercres at 9:04 PM on January 26, 2022 [1 favorite]
lol, lmao
Biden will fail to get anyone on the Court before November or if this is all just our regularly scheduled performative hand wringing
Yes
posted by supercres at 9:04 PM on January 26, 2022 [1 favorite]
I am letting go of all the hand-wringing and anxiety hyperventilation. This Politico analysis is pretty persuasive: "Why not to expect a scorched earth fight over Breyer’s replacement."
Top officials at conservative judicial groups said they viewed the current landscape as less than conducive to a successful bare-knuckled confirmation fight. A Breyer retirement was long expected, Republicans do not control the Senate and, most importantly, a new justice would not shift the court’s ideological balance, let alone its majority.posted by PhineasGage at 9:14 PM on January 26, 2022 [3 favorites]
Fighting over who gets to be in the 3 of a 6-3 minority is really fighting a battle that was lost long ago. Half the court was appointed by Presidents who lost the popular vote and sit there for the purposes of thwarting democratic government. The Court has no legitimacy and needs to be packed. Preferably with one thousand tiktok teens
posted by moorooka at 9:20 PM on January 26, 2022 [30 favorites]
posted by moorooka at 9:20 PM on January 26, 2022 [30 favorites]
Rep. James Clyburn favors Judge Michelle Childs.
posted by blue shadows at 9:21 PM on January 26, 2022 [1 favorite]
posted by blue shadows at 9:21 PM on January 26, 2022 [1 favorite]
I can't wait to see which seven justices Biden appoints to replace him!
posted by key lime guy at 9:42 PM on January 26, 2022 [1 favorite]
posted by key lime guy at 9:42 PM on January 26, 2022 [1 favorite]
Fighting over who gets to be in the 3 of a 6-3 minority is really fighting a battle that was lost long ago
yep. exactly. the reasons repubs are quiet is because it doesnt matter anymore. they get to pretend to be magnanimous on this one, and dems get to fight over who is progressive enough in a court where the nominee's vote will be purely symbolic.
nothing will change til lots and lots and lots of fucking people move to wyoming and north dakota.
posted by wibari at 9:49 PM on January 26, 2022 [12 favorites]
yep. exactly. the reasons repubs are quiet is because it doesnt matter anymore. they get to pretend to be magnanimous on this one, and dems get to fight over who is progressive enough in a court where the nominee's vote will be purely symbolic.
nothing will change til lots and lots and lots of fucking people move to wyoming and north dakota.
posted by wibari at 9:49 PM on January 26, 2022 [12 favorites]
Nothing will change til lots and lots and lots of fucking people move to Wyoming and North Dakota.
Thank God for climate change.
posted by Going To Maine at 10:19 PM on January 26, 2022 [2 favorites]
Thank God for climate change.
posted by Going To Maine at 10:19 PM on January 26, 2022 [2 favorites]
Eponysterical!
posted by darkstar at 10:21 PM on January 26, 2022 [4 favorites]
posted by darkstar at 10:21 PM on January 26, 2022 [4 favorites]
Judge Childs is 55. Too old.
posted by Justinian at 10:31 PM on January 26, 2022 [1 favorite]
posted by Justinian at 10:31 PM on January 26, 2022 [1 favorite]
Judge Childs is 55. Too old.
55 is the prime of a career.
Kavanaugh is 56.
Gorsuch is 54.
Coney Barrett is just turning 50, and is the youngest.
posted by Going To Maine at 10:54 PM on January 26, 2022 [2 favorites]
55 is the prime of a career.
Kavanaugh is 56.
Gorsuch is 54.
Coney Barrett is just turning 50, and is the youngest.
posted by Going To Maine at 10:54 PM on January 26, 2022 [2 favorites]
(Ketanji Brown Jackson is 51 incidentally.)
posted by Going To Maine at 10:56 PM on January 26, 2022
posted by Going To Maine at 10:56 PM on January 26, 2022
My desire for who goes in the role are already most eloquently expressed by Zoe Leonard in their poem I Want A President, just replace President with Justice I guess.
posted by lazaruslong at 2:32 AM on January 27, 2022 [1 favorite]
posted by lazaruslong at 2:32 AM on January 27, 2022 [1 favorite]
At last.
posted by Gelatin at 4:08 AM on January 27, 2022 [1 favorite]
posted by Gelatin at 4:08 AM on January 27, 2022 [1 favorite]
Manchin and Sinema have hurt Biden's agenda, but haven't voted against a court nominee.
"Manchin and Sinema have already voted in favor of several of the federal judges, when they were up for lower court vacancies, who are now said to be in contention for Breyer's seat. Biden has vowed to select a Black woman for the role, which would be a historic first for the high court."
posted by soundguy99 at 4:34 AM on January 27, 2022 [5 favorites]
"Manchin and Sinema have already voted in favor of several of the federal judges, when they were up for lower court vacancies, who are now said to be in contention for Breyer's seat. Biden has vowed to select a Black woman for the role, which would be a historic first for the high court."
posted by soundguy99 at 4:34 AM on January 27, 2022 [5 favorites]
Gorsuch is 54 now, he was 50 when nominated! Boofin Brett was 53 or 54. ACB was 48. Roberts 51. Clarence Thomas was 43 (!). Alito was indeed a positively venerable 55, like Childs, though.
You know how you manage to dominate a 9 person court and put 16 of the last 20 members on it despite not being in power anything like that fraction of the time? You put 43 year olds on the court so that they stay there for 40 years.
55 may be the prime of your career but sadly in this awful age that's only part of the calculation. And not the biggest. The other part is "will this person still be on the court in 2060 to prevent our opponents from replacing her."
Hell I'd suggest finding a talented 33 year old to nominate if I thought Biden could get away with it. Probably mid 40s is the best he can reasonably be expected to do.
posted by Justinian at 4:35 AM on January 27, 2022 [4 favorites]
You know how you manage to dominate a 9 person court and put 16 of the last 20 members on it despite not being in power anything like that fraction of the time? You put 43 year olds on the court so that they stay there for 40 years.
55 may be the prime of your career but sadly in this awful age that's only part of the calculation. And not the biggest. The other part is "will this person still be on the court in 2060 to prevent our opponents from replacing her."
Hell I'd suggest finding a talented 33 year old to nominate if I thought Biden could get away with it. Probably mid 40s is the best he can reasonably be expected to do.
posted by Justinian at 4:35 AM on January 27, 2022 [4 favorites]
Hell I'd suggest finding a talented 33 year old to nominate if I thought Biden could get away with it. Probably mid 40s is the best he can reasonably be expected to do.
Mitch McConnell is busy lining up a newborn for the next time Republicans get a chance.
posted by clawsoon at 4:49 AM on January 27, 2022 [2 favorites]
Mitch McConnell is busy lining up a newborn for the next time Republicans get a chance.
posted by clawsoon at 4:49 AM on January 27, 2022 [2 favorites]
Fetus, surely
posted by acb at 5:11 AM on January 27, 2022 [6 favorites]
posted by acb at 5:11 AM on January 27, 2022 [6 favorites]
Mitch McConnell is busy lining up a newborn for the next time Republicans get a chance
I could see why you'd make this mistake, but the newborn is actually earmarked for the blood magic ritual that will renew the pact between--
I've probably said too much.
posted by Mayor West at 5:59 AM on January 27, 2022 [4 favorites]
I could see why you'd make this mistake, but the newborn is actually earmarked for the blood magic ritual that will renew the pact between--
I've probably said too much.
posted by Mayor West at 5:59 AM on January 27, 2022 [4 favorites]
Gorsuch is 54 now, he was 50 when nominated! Boofin Brett was 53 or 54. ACB was 48. Roberts 51. Clarence Thomas was 43 (!). Alito was indeed a positively venerable 55, like Childs, though.
You know how you manage to dominate a 9 person court and put 16 of the last 20 members on it despite not being in power anything like that fraction of the time? You put 43 year olds on the court so that they stay there for 40 years.
I have no idea of Thomas's health but at 73 he could easily serve another for another 10 years. RBG was nominated at age 60 and served 27 years on the court before passing at age 87. When Barrett was nominated, someone pointed out that if she lives to the same age as RBG, she'd be on the court until 2059. 2059!
So many of these political shitshows could be defanged with 1) term limits or 2) mandatory retirement ages. In Canada, for instance, federal judges must step down at 75 and (I think) provincial judges at age 70. I fully realize that there is probably just not the support or desire there for a drag-out fight over this, it's a shame.
posted by fortitude25 at 6:23 AM on January 27, 2022 [4 favorites]
You know how you manage to dominate a 9 person court and put 16 of the last 20 members on it despite not being in power anything like that fraction of the time? You put 43 year olds on the court so that they stay there for 40 years.
I have no idea of Thomas's health but at 73 he could easily serve another for another 10 years. RBG was nominated at age 60 and served 27 years on the court before passing at age 87. When Barrett was nominated, someone pointed out that if she lives to the same age as RBG, she'd be on the court until 2059. 2059!
So many of these political shitshows could be defanged with 1) term limits or 2) mandatory retirement ages. In Canada, for instance, federal judges must step down at 75 and (I think) provincial judges at age 70. I fully realize that there is probably just not the support or desire there for a drag-out fight over this, it's a shame.
posted by fortitude25 at 6:23 AM on January 27, 2022 [4 favorites]
I always like to peek at the betting markets for this sort of thing.
Right now on PredictIt:
Right now on PredictIt:
- K Brown Jackson $0.62
Leondra Kruger $0.23
J. Michelle Childs $0.16
C. Jackson-Akiwumi $0.02
Kamala Harris $0.02
There should definitely be term limits -- but another reason to appoint some younger justices is age diversity, and a younger judge's potential to be more personally (rather than theoretically) acquainted with some of the more recent landscape of American life. There have been enormous changes in technology, costs of living, outlooks on gender and sex, thinking on race/ethnicity/privilege, and so on over the past few decades. Someone with enough stature and seniority to get nominated is not going to be all that young, but someone in their late '40s or early '50s still grew up in a very different world than someone even a decade or two older and also will (potentially) have more contact with younger people in general. You want people bringing a diversity of backgrounds and experiences to the court, and age is one aspect of that.
posted by trig at 6:33 AM on January 27, 2022 [4 favorites]
posted by trig at 6:33 AM on January 27, 2022 [4 favorites]
So many of these political shitshows could be defanged with 1) term limits or 2) mandatory retirement ages.
The most obvious setup and one which makes a toooon of sense would be SC justices serving 18 year fixed terms, with one justice being appointed on the 2nd and 4th year of every Presidential term. Win a presidential election? You get to nominate 2 justices. Every time, every Presidential term. A Justice not being able to complete their 18 year term would be rare but would occasionally happen, and a replacement justice would serve out the remainer of the 18 years but not reset the clock.
The only issue I can see here is what happens if and when the opposing party refuses to seat a nominee. The hope would be that because justices change every 2 years like clockwork the incentive to pull that stuff would be much reduced. Sadly I think it'd still be an issue but that's a fundamental problem with our busted system of government and not with the idea of 18 year terms.
posted by Justinian at 6:51 AM on January 27, 2022 [5 favorites]
The most obvious setup and one which makes a toooon of sense would be SC justices serving 18 year fixed terms, with one justice being appointed on the 2nd and 4th year of every Presidential term. Win a presidential election? You get to nominate 2 justices. Every time, every Presidential term. A Justice not being able to complete their 18 year term would be rare but would occasionally happen, and a replacement justice would serve out the remainer of the 18 years but not reset the clock.
The only issue I can see here is what happens if and when the opposing party refuses to seat a nominee. The hope would be that because justices change every 2 years like clockwork the incentive to pull that stuff would be much reduced. Sadly I think it'd still be an issue but that's a fundamental problem with our busted system of government and not with the idea of 18 year terms.
posted by Justinian at 6:51 AM on January 27, 2022 [5 favorites]
Kamala Harris $0.02 is roughly infinity cents too high.
posted by Justinian at 6:52 AM on January 27, 2022 [3 favorites]
posted by Justinian at 6:52 AM on January 27, 2022 [3 favorites]
So apparently the WashPo editorial board published some smarmy op/ed saying "Biden should be real careful to pick the best candidate and oh a Black woman would be nice but really does it have to be one?" Which, yuck, but at least American is blessed with Michael Harriot. Who totally shredded it and localized the WashPo's stance in our history of white supremacy.
They’ll say Biden is nominating a Black woman because she is a black woman. Because they don’t know critical race theory, they can’t see that 98% of justices became justices BECAUSE THEY WERE WHITE MEN.posted by Nelson at 7:06 AM on January 27, 2022 [17 favorites]
Stacey Abrams would be a good pick. But, again, Dems can't pass anything these days, so that won't happen.
She's kind of busy running for governor of Georgia.
posted by octothorpe at 7:20 AM on January 27, 2022 [11 favorites]
She's kind of busy running for governor of Georgia.
posted by octothorpe at 7:20 AM on January 27, 2022 [11 favorites]
She's kind of busy running for governor of Georgia.
Where, in addition to the fact that the governorship was likely stolen from her last time, she would have much more power than on SCOTUS. As pointed out upthread, there are several qualified candidates for SCOTUS among African-American women; Abrams is uniquely positioned to take the Georgia governorship, which in turn would aid the Democrats nationally (as she is also trying to do).
posted by Gelatin at 7:37 AM on January 27, 2022 [15 favorites]
Where, in addition to the fact that the governorship was likely stolen from her last time, she would have much more power than on SCOTUS. As pointed out upthread, there are several qualified candidates for SCOTUS among African-American women; Abrams is uniquely positioned to take the Georgia governorship, which in turn would aid the Democrats nationally (as she is also trying to do).
posted by Gelatin at 7:37 AM on January 27, 2022 [15 favorites]
She'd certainly be more effective and valuable as a governor of a large purple state than a minority member of a 6-3 court.
posted by octothorpe at 7:43 AM on January 27, 2022 [12 favorites]
posted by octothorpe at 7:43 AM on January 27, 2022 [12 favorites]
A little off topic, but it's as good a time as ever to revisit Bill Kristol being pied.
1. My alma mater!
2. Physical assault of political opponents (even with pies) is not a good thing
3. Bill Kristol has been one of the few conservatives to provide constant principled opposition to Trump.
He may be an idiot, but he’s not a fascist. It’s a low bar, but one that few on the right have met.
posted by leotrotsky at 8:54 AM on January 27, 2022 [7 favorites]
1. My alma mater!
2. Physical assault of political opponents (even with pies) is not a good thing
3. Bill Kristol has been one of the few conservatives to provide constant principled opposition to Trump.
He may be an idiot, but he’s not a fascist. It’s a low bar, but one that few on the right have met.
posted by leotrotsky at 8:54 AM on January 27, 2022 [7 favorites]
Bill Kristol has been one of the few conservatives to provide constant principled opposition to Trump
Not to derail, but I disagree: this "principled opposition" to Trump of Kristol, David French et al. has very little to do with Trump's actual policies (most of which they support) and all to do with Trump's personality, style, and appearance. All of these "principled conservatives" would have been perfectly fine with a President Romney building a border wall and putting kids in cages, because he wouldn't be tweeting insults at 3am or feeding White House visitors with Big Macs.
So I have no time for these people.
posted by fortitude25 at 9:04 AM on January 27, 2022 [12 favorites]
Not to derail, but I disagree: this "principled opposition" to Trump of Kristol, David French et al. has very little to do with Trump's actual policies (most of which they support) and all to do with Trump's personality, style, and appearance. All of these "principled conservatives" would have been perfectly fine with a President Romney building a border wall and putting kids in cages, because he wouldn't be tweeting insults at 3am or feeding White House visitors with Big Macs.
So I have no time for these people.
posted by fortitude25 at 9:04 AM on January 27, 2022 [12 favorites]
The distinction between destroying the country and advocating for horrible policies should not be minimized.
posted by Going To Maine at 9:25 AM on January 27, 2022 [2 favorites]
posted by Going To Maine at 9:25 AM on January 27, 2022 [2 favorites]
But, of course, pie-ing someone in the face shouldn’t be divorced from the context in which the pie was thrown.
posted by Going To Maine at 9:27 AM on January 27, 2022
posted by Going To Maine at 9:27 AM on January 27, 2022
Biden confirmed he will nominate a black woman
posted by girlmightlive at 9:45 AM on January 27, 2022 [1 favorite]
posted by girlmightlive at 9:45 AM on January 27, 2022 [1 favorite]
The distinction between destroying the country and advocating for horrible policies should not be minimized.
That just sounds like fascism with extra steps.
posted by Glegrinof the Pig-Man at 9:52 AM on January 27, 2022 [4 favorites]
That just sounds like fascism with extra steps.
posted by Glegrinof the Pig-Man at 9:52 AM on January 27, 2022 [4 favorites]
William O. Douglas was 40 at the time of his confirmation and Clarence Thomas was 43. It would be great if a qualified, liberal 40 something was nominated and confirmed and then served at least 40 years.
posted by mlis at 10:11 AM on January 27, 2022 [2 favorites]
posted by mlis at 10:11 AM on January 27, 2022 [2 favorites]
The distinction between destroying the country and advocating for horrible policies should not be minimized.
It's a distinction without a difference, when said horrible policies have been part of a decades-long process of destroying the country — or at least removing reins on unchecked accumulation and concentration of power and capital by way of a thousand paper cuts, which ultimately amounts to the same.
posted by They sucked his brains out! at 10:13 AM on January 27, 2022 [2 favorites]
It's a distinction without a difference, when said horrible policies have been part of a decades-long process of destroying the country — or at least removing reins on unchecked accumulation and concentration of power and capital by way of a thousand paper cuts, which ultimately amounts to the same.
posted by They sucked his brains out! at 10:13 AM on January 27, 2022 [2 favorites]
I disagree with Biden's decision to appoint a Black woman.
I think he should appoint fifteen Black women.
posted by Faint of Butt at 12:01 PM on January 27, 2022 [11 favorites]
I think he should appoint fifteen Black women.
posted by Faint of Butt at 12:01 PM on January 27, 2022 [11 favorites]
“I couldn’t decide, so I’m nominating not one but THREE Black women today” would be an amazing and hilarious move. Would never happen, but I can dream.
posted by hijinx at 12:19 PM on January 27, 2022 [5 favorites]
posted by hijinx at 12:19 PM on January 27, 2022 [5 favorites]
Keep dreaming--let's impeach Clarence Thomas.
posted by box at 1:26 PM on January 27, 2022 [2 favorites]
posted by box at 1:26 PM on January 27, 2022 [2 favorites]
"I like beer" rapist kavanaugh literally perjured himself in front of the whole world and no dems are talking about impeaching him. The court is lost, the dems can put a black woman there as a powerless totem and call that progress but it's just one more act in the complete surrender to a generation of minoritarian tyranny.
posted by moorooka at 1:52 PM on January 27, 2022 [4 favorites]
posted by moorooka at 1:52 PM on January 27, 2022 [4 favorites]
Any dem who doesn't support court-packing needs to primaried into oblivion
posted by moorooka at 1:55 PM on January 27, 2022 [1 favorite]
posted by moorooka at 1:55 PM on January 27, 2022 [1 favorite]
How about if we call it "court expansion" instead of adopting a label that's inherently pejorative and off-putting to a lot of people we'd like to persuade.
posted by PhineasGage at 2:01 PM on January 27, 2022 [9 favorites]
posted by PhineasGage at 2:01 PM on January 27, 2022 [9 favorites]
the reasons repubs are quiet is because it doesnt matter anymore
Come on now. There are Justices on that court who...are in an advanced enough age that, you can't take it for granted they won't....uh....yeah. Dems have to keep the Senate, because you never know.
posted by 922257033c4a0f3cecdbd819a46d626999d1af4a at 2:02 PM on January 27, 2022
Come on now. There are Justices on that court who...are in an advanced enough age that, you can't take it for granted they won't....uh....yeah. Dems have to keep the Senate, because you never know.
posted by 922257033c4a0f3cecdbd819a46d626999d1af4a at 2:02 PM on January 27, 2022
How about if we call it "court expansion" instead of adopting a label that's inherently pejorative and off-putting to a lot of people we'd like to persuade.
I prefer "unpacking the court." Because the Republicans sure as fuck packed it to begin with.
posted by Gadarene at 2:07 PM on January 27, 2022 [6 favorites]
I prefer "unpacking the court." Because the Republicans sure as fuck packed it to begin with.
posted by Gadarene at 2:07 PM on January 27, 2022 [6 favorites]
And... right on schedule.
Mr. Biden is now going to create one of the more jarring and incongruous moments in the history of the Supreme Court. This fall, in the Harvard and University of North Carolina cases, the justices will hear arguments that the use of race in admissions is unlawful discrimination. One of them will have gained her seat in part through exclusionary criteria of race and sex.
(Jonathan Turley, WSJ)
posted by delfin at 2:38 PM on January 27, 2022 [1 favorite]
Mr. Biden is now going to create one of the more jarring and incongruous moments in the history of the Supreme Court. This fall, in the Harvard and University of North Carolina cases, the justices will hear arguments that the use of race in admissions is unlawful discrimination. One of them will have gained her seat in part through exclusionary criteria of race and sex.
(Jonathan Turley, WSJ)
posted by delfin at 2:38 PM on January 27, 2022 [1 favorite]
One of them will have gained her seat in part through exclusionary criteria of race and sex.
"exclusionary" is doing a lot of heavy lifting there. Anti-gravity-like heavy lifting, I'd say.
posted by clawsoon at 2:51 PM on January 27, 2022 [5 favorites]
"exclusionary" is doing a lot of heavy lifting there. Anti-gravity-like heavy lifting, I'd say.
posted by clawsoon at 2:51 PM on January 27, 2022 [5 favorites]
Biden confirmed he will nominate a black woman
I suggest Kamila Harris. She's perfectly qualified, and would do more good as a justice than she would losing a presidential election. Plus, she hates being Vice President.
posted by Bee'sWing at 2:57 PM on January 27, 2022
I suggest Kamila Harris. She's perfectly qualified, and would do more good as a justice than she would losing a presidential election. Plus, she hates being Vice President.
posted by Bee'sWing at 2:57 PM on January 27, 2022
I suggest Kamila Harris. She's perfectly qualified, and would do more good as a justice than she would losing a presidential election. Plus, she hates being Vice President.
I don't think there's any evidence to suggest that she has anything close to the analytically rigorous mind, academic disposition, and writing ability that one would need to be a good appellate judge, let alone at the Supreme Court.
Just because someone is a smart lawyer doesn't mean they are anywhere qualified to do that job.
posted by Gadarene at 3:14 PM on January 27, 2022 [2 favorites]
I don't think there's any evidence to suggest that she has anything close to the analytically rigorous mind, academic disposition, and writing ability that one would need to be a good appellate judge, let alone at the Supreme Court.
Just because someone is a smart lawyer doesn't mean they are anywhere qualified to do that job.
posted by Gadarene at 3:14 PM on January 27, 2022 [2 favorites]
True. Is there any evidence that Brett Kavanaugh or Amy Coney Barret have any of those things? Apparently, skill at the bench isn't a requirement for the Supreme Court anymore. It's a partisan political institution.
posted by mrgoat at 3:19 PM on January 27, 2022 [1 favorite]
posted by mrgoat at 3:19 PM on January 27, 2022 [1 favorite]
Is there any evidence that Brett Kavanaugh or Amy Coney Barret have any of those things?
Other than their previous experience on the bench? Or Barret's experience as a law professor?
posted by pwnguin at 3:23 PM on January 27, 2022 [2 favorites]
Other than their previous experience on the bench? Or Barret's experience as a law professor?
posted by pwnguin at 3:23 PM on January 27, 2022 [2 favorites]
True. Is there any evidence that Brett Kavanaugh or Amy Coney Barret have any of those things? Apparently, skill at the bench isn't a requirement for the Supreme Court anymore. It's a partisan political institution.
Kavanaugh is a terrible jurist.
I would like someone who would be an exceptional jurist, please. There are plenty of brilliant Black women who have demonstrated that skill set in abundance, and I wish we could put five of them on the Court starting tomorrow.
posted by Gadarene at 3:29 PM on January 27, 2022 [4 favorites]
Kavanaugh is a terrible jurist.
I would like someone who would be an exceptional jurist, please. There are plenty of brilliant Black women who have demonstrated that skill set in abundance, and I wish we could put five of them on the Court starting tomorrow.
posted by Gadarene at 3:29 PM on January 27, 2022 [4 favorites]
Biden made a campaign pledge to put a Black woman on the Supreme Court.
New York Times article using the share link at the bottom of the article. Hope it works.
posted by kirkaracha at 3:29 PM on January 27, 2022
New York Times article using the share link at the bottom of the article. Hope it works.
posted by kirkaracha at 3:29 PM on January 27, 2022
Even with the prior nomination precedents cited, even with the obvious qualifications of the judges under consideration (which even Turley openly concedes in his piece), once the media hears the tune being played they will reach for their familiar instruments.
In announcing that his pick would be constrained by racial/gender identity, Biden did indeed, tell a generation of young progressive jurists that they need not apply.
(Charlie Sykes of MSNBC/Bulwark)
posted by delfin at 4:12 PM on January 27, 2022
In announcing that his pick would be constrained by racial/gender identity, Biden did indeed, tell a generation of young progressive jurists that they need not apply.
(Charlie Sykes of MSNBC/Bulwark)
posted by delfin at 4:12 PM on January 27, 2022
Some other things to remember about this process are that no matter who Biden chooses:
a) The far right will assail them as a Communist, a hand-picked Soros operative, a bomb-throwing radical activist, a danger to American freedom in all its forms and a horrible, biased, completely unsuitable choice who should instead be locked up for the good of America.
It doesn't matter who it is. Biden could nominate Candace Owens (THOUGH I STRONGLY ADVISE THAT HE SHOULD NOT), and as if by magic, she would be slimed as a Socialist spy and a RINO overnight. It's in their blood; their mantra is to identify the most visible target, attack without letting facts get in the way, and repeat.
b) The nominee will, in fact, not be a hardcore bomb-throwing ultra-left radical activist. And that's a good thing.
Firstly, come on, now. This is Joe Biden we're talking about.
Secondly, I am drawing both amusement and some faint comfort by the fact that every time Kavanaugh, Gorsuch or Barrett rules even slightly out of alignment with what Donald Trump wants, such as in the recent healthcare-worker mandate decision, the furies are unleashed and the usual suspects HOWL how the three of them were terrible choices, they're turncoats, they're RINOs, they're liberals, the court is actually tilted 7-2 to the left rather than 6-3 to the right, et cetera. However many times that they have toed the line do not matter; one hundred percent obedience is expected.
On the saner segments of the political spectrum, we don't work quite like that. We don't want a leftist rubber stamp any more than McConnell does. We want someone whose interpretations and philosophy regarding the law and the Constitution lean more left than right, true. But this should not be a team sport. We want a selection who will occasionally infuriate us by applying judicial insight to certain cases and (correctly) decide that the laws and the facts don't swing in the direction we'd want them to.
More often than not, reality _does_ have a liberal bias. But the judges shouldn't; they should simply agree when the facts state that it does.
posted by delfin at 4:33 PM on January 27, 2022 [7 favorites]
a) The far right will assail them as a Communist, a hand-picked Soros operative, a bomb-throwing radical activist, a danger to American freedom in all its forms and a horrible, biased, completely unsuitable choice who should instead be locked up for the good of America.
It doesn't matter who it is. Biden could nominate Candace Owens (THOUGH I STRONGLY ADVISE THAT HE SHOULD NOT), and as if by magic, she would be slimed as a Socialist spy and a RINO overnight. It's in their blood; their mantra is to identify the most visible target, attack without letting facts get in the way, and repeat.
b) The nominee will, in fact, not be a hardcore bomb-throwing ultra-left radical activist. And that's a good thing.
Firstly, come on, now. This is Joe Biden we're talking about.
Secondly, I am drawing both amusement and some faint comfort by the fact that every time Kavanaugh, Gorsuch or Barrett rules even slightly out of alignment with what Donald Trump wants, such as in the recent healthcare-worker mandate decision, the furies are unleashed and the usual suspects HOWL how the three of them were terrible choices, they're turncoats, they're RINOs, they're liberals, the court is actually tilted 7-2 to the left rather than 6-3 to the right, et cetera. However many times that they have toed the line do not matter; one hundred percent obedience is expected.
On the saner segments of the political spectrum, we don't work quite like that. We don't want a leftist rubber stamp any more than McConnell does. We want someone whose interpretations and philosophy regarding the law and the Constitution lean more left than right, true. But this should not be a team sport. We want a selection who will occasionally infuriate us by applying judicial insight to certain cases and (correctly) decide that the laws and the facts don't swing in the direction we'd want them to.
More often than not, reality _does_ have a liberal bias. But the judges shouldn't; they should simply agree when the facts state that it does.
posted by delfin at 4:33 PM on January 27, 2022 [7 favorites]
It was linked and quoted several times above, so it's worth noting that the linked Times article about the Republicans on the Judiciary Committee being able to block the nomination due to a "bad deal" made by the majority leader was bullshit and has been updated to reflect that fact:
The original version of this story incorrectly stated that Republicans could use Senate rules to block a Biden Supreme Court nomination. It was based on the author’s incorrect analysis of a May 13, 2021, Congressional Research Service report. The Senate will require a majority of votes to approve Justice Stephen Breyer’s replacement, not 60 votes.posted by hydropsyche at 4:38 PM on January 27, 2022 [4 favorites]
I do wonder what was gained by Biden explicitly re-announcing today that the nominee will be a Black woman. That is of course the outcome we expect, and the outcome we desire, but it seems clumsy political communications, with no political benefit that I can see.
posted by PhineasGage at 4:39 PM on January 27, 2022 [1 favorite]
posted by PhineasGage at 4:39 PM on January 27, 2022 [1 favorite]
He's fulfilling a campaign promise
It sure would be nice if white men just took a day to not be so bothered by not personally being considered for the Supreme Court. Y'all got 109/115. Surely it's okay to let someone else have this one?
posted by hydropsyche at 4:43 PM on January 27, 2022 [9 favorites]
It sure would be nice if white men just took a day to not be so bothered by not personally being considered for the Supreme Court. Y'all got 109/115. Surely it's okay to let someone else have this one?
posted by hydropsyche at 4:43 PM on January 27, 2022 [9 favorites]
You are conflating what's right (and what is and will be announced by late February) with what's politically most advantageous. We know he is going to be fulfilling that campaign promise. I was asking a pure tactics question.
posted by PhineasGage at 5:01 PM on January 27, 2022
posted by PhineasGage at 5:01 PM on January 27, 2022
Black women vote for Democrats or they stay home (or are prevented from voting by Joe Manchin and Krysten Sinema colluding with the Republicans). Most white people vote Republican. I'm delighted to see President Biden for once not coddling people who were going to vote Republican anyway.
posted by hydropsyche at 5:12 PM on January 27, 2022 [5 favorites]
posted by hydropsyche at 5:12 PM on January 27, 2022 [5 favorites]
You are conflating what's right (and what is and will be announced by late February) with what's politically most advantageous. We know he is going to be fulfilling that campaign promise. I was asking a pure tactics question.
To go back on it now, to say "Well, now that I've thought about it, I will consider other candidates as well" would carry the implication that there was something wrong about his initial promise and declaration. You go out on a limb, you don't inch back to the trunk.
posted by delfin at 5:20 PM on January 27, 2022 [8 favorites]
To go back on it now, to say "Well, now that I've thought about it, I will consider other candidates as well" would carry the implication that there was something wrong about his initial promise and declaration. You go out on a limb, you don't inch back to the trunk.
posted by delfin at 5:20 PM on January 27, 2022 [8 favorites]
Thanks, delfin, that's a helpful reply.
posted by PhineasGage at 5:26 PM on January 27, 2022
posted by PhineasGage at 5:26 PM on January 27, 2022
The distinction between destroying the country and advocating for horrible policies should not be minimized.
That just sounds like fascism with extra steps.
Yes, in the same way that going to McDonald’s every day is like poisoning yourself with bleach, but with extra steps.
posted by Going To Maine at 6:06 PM on January 27, 2022 [2 favorites]
That just sounds like fascism with extra steps.
Yes, in the same way that going to McDonald’s every day is like poisoning yourself with bleach, but with extra steps.
posted by Going To Maine at 6:06 PM on January 27, 2022 [2 favorites]
Maybe not so extra if you order the Shamrock Shake. I never have trusted those things.
posted by delfin at 6:21 PM on January 27, 2022 [1 favorite]
posted by delfin at 6:21 PM on January 27, 2022 [1 favorite]
with no political benefit that I can see.
It does have the political benefit of forcing white male Republican Senators to argue, in session, that the nominee is not qualified simply because she is a Black woman. All that footage will then appear in campaign ads during the mid-terms.
posted by elwoodwiles at 7:37 PM on January 27, 2022 [4 favorites]
It does have the political benefit of forcing white male Republican Senators to argue, in session, that the nominee is not qualified simply because she is a Black woman. All that footage will then appear in campaign ads during the mid-terms.
posted by elwoodwiles at 7:37 PM on January 27, 2022 [4 favorites]
My question was about the wisdom of announcing the core principle today rather than when announcing the nominee herself in a few weeks.
posted by PhineasGage at 8:02 PM on January 27, 2022
posted by PhineasGage at 8:02 PM on January 27, 2022
(Jonathan Turley, WSJ)
Christ, what an asshole.
posted by Justinian at 9:25 PM on January 27, 2022 [3 favorites]
Christ, what an asshole.
posted by Justinian at 9:25 PM on January 27, 2022 [3 favorites]
dahlia lithwick on forum with mina kim (in podcast form to skip ahead) really gets going around 43m, re: the 6-3 split, culminating in "the court is actually going after democracy itself..."
posted by kliuless at 9:56 PM on January 27, 2022 [1 favorite]
posted by kliuless at 9:56 PM on January 27, 2022 [1 favorite]
Christ, what an asshole.
That's part of the job description.
posted by acb at 1:08 AM on January 28, 2022 [1 favorite]
That's part of the job description.
posted by acb at 1:08 AM on January 28, 2022 [1 favorite]
My question was about the wisdom of announcing the core principle today rather than when announcing the nominee herself in a few weeks.
I mean, from a tactical standpoint, Biden and the Dems have been under fire lately for not fulfilling campaign promises on things like student debt and a bunch of stuff that was in the Build Back Better bill. You get an opportunity to switch the narrative around to "See, we DO keep our campaign promises", you take it.
posted by soundguy99 at 4:35 AM on January 28, 2022 [6 favorites]
I mean, from a tactical standpoint, Biden and the Dems have been under fire lately for not fulfilling campaign promises on things like student debt and a bunch of stuff that was in the Build Back Better bill. You get an opportunity to switch the narrative around to "See, we DO keep our campaign promises", you take it.
posted by soundguy99 at 4:35 AM on January 28, 2022 [6 favorites]
Yep, and as folks are working on voter registration efforts for the coming mid-term primaries, it’s not a bad thing to remind potential Dem voters that, yes, there is a big difference between the political parties, and it’s only by registering and voting that we get to have nice things, like a highly qualified Black woman Supreme Court Justice, and maybe other nice things we have always wanted, if enough of us get out and vote.
posted by darkstar at 6:43 AM on January 28, 2022 [6 favorites]
posted by darkstar at 6:43 AM on January 28, 2022 [6 favorites]
"I like beer" rapist kavanaugh literally perjured himself in front of the whole world and no dems are talking about impeaching him.
Removing him would take 67 votes, which means 17 Republicans joining in to create another vacancy for Biden to fill. And that's after Senate Republicans twice acquitted Trump, the second time for fomenting a coup against Congress itself. What purpose would even "talking about" impeaching Kavanaugh serve when it'll never happen and Republicans know it?
Ford knows the Democrats can be disappointing, but let's not blame them for not wasting their time on a doomed and futile impeachment attempt.
posted by Gelatin at 8:11 AM on January 28, 2022 [3 favorites]
Removing him would take 67 votes, which means 17 Republicans joining in to create another vacancy for Biden to fill. And that's after Senate Republicans twice acquitted Trump, the second time for fomenting a coup against Congress itself. What purpose would even "talking about" impeaching Kavanaugh serve when it'll never happen and Republicans know it?
Ford knows the Democrats can be disappointing, but let's not blame them for not wasting their time on a doomed and futile impeachment attempt.
posted by Gelatin at 8:11 AM on January 28, 2022 [3 favorites]
That's basically what is meant the the Green Lantern theory of executive power. Basically some folks think that Biden (or any President) can do anything he wants if he just wants it badly enough. The obvious corollary being that if he doesn't do something it can only be because he doesn't want to do it.
posted by Justinian at 9:34 AM on January 28, 2022 [6 favorites]
posted by Justinian at 9:34 AM on January 28, 2022 [6 favorites]
No offense to anyone, but I find a lot of the commentary around Biden’s promise to appoint “a black woman” kind of bothersome. Yeah, there are the people who think that “black female judge” and “unqualified affirmative action hire” are synonyms, but then there are also people who seem to think that “black woman” is a synonym for “wise, compassionate and progressive individual.” And apparently this single act will enormously benefit both US society as a whole and the black community in particular, although I’m not quite sure how. Like, I don’t think that there’s an actual supernatural force called “black girl magic.”
posted by cinchona at 12:44 PM on January 29, 2022
posted by cinchona at 12:44 PM on January 29, 2022
For me, I figure progressive, wise, and compassionate are less a matter of demographics and more a matter of who is doing the searching and nominating. There are fortunately enough people who are women, Black, and qualified that there should be a range of progressive, wise, and compassionate Black women candidates to choose from for a president interested in those qualities.
But why look for Black women specifically? I'd take it in parts. Should the new justice be a woman? Women aren't guaranteed to be wise, compassionate, or progressive: see Barrett, for one glaring example. But there are 3 women on the court, and 6 men. Historically there have been 115 justices ever -- and a total of 5 women, ever. The population of the United States is, and always has been, around 50% women. The court decides numerous issues that affect women in general and women specifically. Male politicians and male judges have repeatedly evinced enormous ignorance as to women's lived experiences and women's needs; they have also repeatedly evinced a tendency to discount their experiences, needs, and voices (see this study on Supreme Court behavior, for example, but you and I both know there are hundreds of studies like this). A woman whose case goes before the current court, or who is arguing as a lawyer before the court, has reason to expect more ignorance and discrimination, whether conscious or unconscious, than a male plaintiff or lawyer of otherwise similar background would face. For these reasons I think the next justice should be a woman. Whether RBG's comment that there will be "enough" women justices on the court when there are nine should be taken literally or not is something I'll consider if it ever becomes relevant. (You and I both know that it won't.)
Should the new justice be Black? Black justices aren't guaranteed to be wise, compassionate, or progressive: see Thomas, for one glaring example. But there is one Black person on the court, and 7 white ones. Historically there have been 115 justices ever -- and a total of 2 have been Black, ever. The population of the United States is around 14% Black. The court decides numerous issues that affect Black people in general and Black people specifically. Non-Black politicians and non-Black judges have repeatedly evinced enormous ignorance as to Black people's lived experiences and Black people's needs; they have also repeatedly evinced a tendency to discount their experiences, needs, and voices (again, there are so many studies showing conscious discrimination and unconscious bias that the heart sinks and the mind boggles). A Black person whose case goes before the current court, or who is arguing as a lawyer before the court, has reason to expect more ignorance and discrimination, whether conscious or unconscious, than a non-Black plaintiff or lawyer of an otherwise similar background would face, and certainly than a white one would. In addition the argument can be made -- correctly, I think -- that a large part of the apparatus of America's democracy, including its judicial branch, has historically been, and at too many levels still is, designed to discriminate against Black people. For these reasons, I think it is absolutely right for the next justice to be Black.
You could say, "what about other underrepresented groups"? Research shows that diversity leads to better outcomes in all kinds of situations, but it doesn't say that diversity has to be along the Black/white or women/men axes. And I'd agree: If Biden had said his next pick would be a Black atheist non-straight non-binary American who studied at universities currently unrepresented on the court, I'd be good with that too. (Personally, I think "atheist" would be the most politically expensive category; how many generations of open atheists have been "told not to apply" for any major office?) Hopefully the next justice after this one will be a woman of another unrepresented or under-represented background. A good time to stop specifically aiming for diversity would be when white, straight, Christian men stop dominating the court, as they have done, through force, for over 200 years. A good time to stop specifically aiming at diversity would be when diversity is the default rather than the exception.
Some part of the commentary around any issue is bound to be stupid or personally off-putting. But that doesn't mean the overall idea -- that the next justice should be a woman, and that the next justice should be Black -- doesn't make hold up when you look at it apart from all the commentary.
If the objection is that it's too specific a category -- that Biden should have just said that the next nominee would be a woman, or Black, or not White -- then I guess the question is why that would be more legitimate, and where the line falls between too specific and not specific enough.
If the objection is that Biden shouldn't have said anything beyond "I'll look for the most qualified candidate" -- but still resolved internally to appoint a Black woman -- I think you can argue both ways about the value of openly declaring the importance of representation versus the value of upholding the narrative of blind merit. (Personally, I wish he were more openly making the argument that if the default process were in any way egalitarian, we'd have seen a far more balanced court by now; and that that being the case, it's necessary to intentionally go out of one's way to ensure balance.)
And if the objection is that Biden should not only not have announced that he's looking for a Black woman specifically but should also not be looking specifically for those qualities -- then on what basis should he choose? I don't think there exists one single candidate who stands out as most wise, most compassionate, and most progressive.
It's like college admissions -- you've got way more excellent candidates than seats. So how do you choose? By throwing a bunch of applications in the air? White, male, (Christian, straight, cis, Ivy-educated, ...) judges are significantly over-represented in proportion to their share of the general population, because they've been the only default choice for centuries, which also means that they're over-represented in every part of the judicial system -- the educators, the evaluators, the hirers. So random choice, or traditional methods like personal connections, are going to reinforce homogeneity more often than not.
If random choice and personal connections aren't the right method, and looking for the "most excellent" candidate doesn't make sense, then by what criteria should you choose? Creating a list of excellent candidates who make the court more diverse seems at least as good as previous approaches. Narrowing down the diversity criteria to the still-broad categories of Black and woman seems both legitimate and important, for the reasons described above. I think that's true regardless of anyone's desire to idealize, exotify, or celebrate Black women.
posted by trig at 2:54 PM on January 29, 2022 [8 favorites]
But why look for Black women specifically? I'd take it in parts. Should the new justice be a woman? Women aren't guaranteed to be wise, compassionate, or progressive: see Barrett, for one glaring example. But there are 3 women on the court, and 6 men. Historically there have been 115 justices ever -- and a total of 5 women, ever. The population of the United States is, and always has been, around 50% women. The court decides numerous issues that affect women in general and women specifically. Male politicians and male judges have repeatedly evinced enormous ignorance as to women's lived experiences and women's needs; they have also repeatedly evinced a tendency to discount their experiences, needs, and voices (see this study on Supreme Court behavior, for example, but you and I both know there are hundreds of studies like this). A woman whose case goes before the current court, or who is arguing as a lawyer before the court, has reason to expect more ignorance and discrimination, whether conscious or unconscious, than a male plaintiff or lawyer of otherwise similar background would face. For these reasons I think the next justice should be a woman. Whether RBG's comment that there will be "enough" women justices on the court when there are nine should be taken literally or not is something I'll consider if it ever becomes relevant. (You and I both know that it won't.)
Should the new justice be Black? Black justices aren't guaranteed to be wise, compassionate, or progressive: see Thomas, for one glaring example. But there is one Black person on the court, and 7 white ones. Historically there have been 115 justices ever -- and a total of 2 have been Black, ever. The population of the United States is around 14% Black. The court decides numerous issues that affect Black people in general and Black people specifically. Non-Black politicians and non-Black judges have repeatedly evinced enormous ignorance as to Black people's lived experiences and Black people's needs; they have also repeatedly evinced a tendency to discount their experiences, needs, and voices (again, there are so many studies showing conscious discrimination and unconscious bias that the heart sinks and the mind boggles). A Black person whose case goes before the current court, or who is arguing as a lawyer before the court, has reason to expect more ignorance and discrimination, whether conscious or unconscious, than a non-Black plaintiff or lawyer of an otherwise similar background would face, and certainly than a white one would. In addition the argument can be made -- correctly, I think -- that a large part of the apparatus of America's democracy, including its judicial branch, has historically been, and at too many levels still is, designed to discriminate against Black people. For these reasons, I think it is absolutely right for the next justice to be Black.
You could say, "what about other underrepresented groups"? Research shows that diversity leads to better outcomes in all kinds of situations, but it doesn't say that diversity has to be along the Black/white or women/men axes. And I'd agree: If Biden had said his next pick would be a Black atheist non-straight non-binary American who studied at universities currently unrepresented on the court, I'd be good with that too. (Personally, I think "atheist" would be the most politically expensive category; how many generations of open atheists have been "told not to apply" for any major office?) Hopefully the next justice after this one will be a woman of another unrepresented or under-represented background. A good time to stop specifically aiming for diversity would be when white, straight, Christian men stop dominating the court, as they have done, through force, for over 200 years. A good time to stop specifically aiming at diversity would be when diversity is the default rather than the exception.
Some part of the commentary around any issue is bound to be stupid or personally off-putting. But that doesn't mean the overall idea -- that the next justice should be a woman, and that the next justice should be Black -- doesn't make hold up when you look at it apart from all the commentary.
If the objection is that it's too specific a category -- that Biden should have just said that the next nominee would be a woman, or Black, or not White -- then I guess the question is why that would be more legitimate, and where the line falls between too specific and not specific enough.
If the objection is that Biden shouldn't have said anything beyond "I'll look for the most qualified candidate" -- but still resolved internally to appoint a Black woman -- I think you can argue both ways about the value of openly declaring the importance of representation versus the value of upholding the narrative of blind merit. (Personally, I wish he were more openly making the argument that if the default process were in any way egalitarian, we'd have seen a far more balanced court by now; and that that being the case, it's necessary to intentionally go out of one's way to ensure balance.)
And if the objection is that Biden should not only not have announced that he's looking for a Black woman specifically but should also not be looking specifically for those qualities -- then on what basis should he choose? I don't think there exists one single candidate who stands out as most wise, most compassionate, and most progressive.
It's like college admissions -- you've got way more excellent candidates than seats. So how do you choose? By throwing a bunch of applications in the air? White, male, (Christian, straight, cis, Ivy-educated, ...) judges are significantly over-represented in proportion to their share of the general population, because they've been the only default choice for centuries, which also means that they're over-represented in every part of the judicial system -- the educators, the evaluators, the hirers. So random choice, or traditional methods like personal connections, are going to reinforce homogeneity more often than not.
If random choice and personal connections aren't the right method, and looking for the "most excellent" candidate doesn't make sense, then by what criteria should you choose? Creating a list of excellent candidates who make the court more diverse seems at least as good as previous approaches. Narrowing down the diversity criteria to the still-broad categories of Black and woman seems both legitimate and important, for the reasons described above. I think that's true regardless of anyone's desire to idealize, exotify, or celebrate Black women.
posted by trig at 2:54 PM on January 29, 2022 [8 favorites]
The obvious corollary being that if he doesn't do something it can only be because he doesn't want to do it.
An interesting and fascinating counterexample to this is Biden, himself, who openly expressed support for same-sex marriage back when he was VP -- and had expressed that support when President Obama didn't, until some time later. Despite the Green Lantern comic book theory, it is sometimes possible for the executive branch (or some part of it, at least) to act on the desire to improve upon the commonweal, when it so wishes, as its power does allow.
posted by They sucked his brains out! at 5:44 PM on January 30, 2022
An interesting and fascinating counterexample to this is Biden, himself, who openly expressed support for same-sex marriage back when he was VP -- and had expressed that support when President Obama didn't, until some time later. Despite the Green Lantern comic book theory, it is sometimes possible for the executive branch (or some part of it, at least) to act on the desire to improve upon the commonweal, when it so wishes, as its power does allow.
posted by They sucked his brains out! at 5:44 PM on January 30, 2022
MJ Lee:
After meeting with Biden at the White House tonight about SCOTUS vacancy, Sen. Durbin says he and his Dem colleagues' message to Biden was: "We trust your judgment, Joe Biden, when it comes to choosing the right person."posted by Glegrinof the Pig-Man at 1:26 PM on February 11, 2022
Also said they shared with Biden their recommendations.
Sen. Klobuchar says they would not "rule out" there being Republican support for Biden's eventual SCOTUS nominee. Sen. Coons says they discussed choosing a SCOTUS nominee who is "in the model of Justice Breyer" and a "person of integrity and character." Notably, Durbin says "our goal is to get bipartisan support for the nominee."
Earlier today Biden said in NBC interview that his nominee would get GOP support in part because he'd choose someone w/ a "mainstream" interpretation of the Constitution.
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posted by acb at 3:28 PM on January 26, 2022 [29 favorites]