Race, Gender and the Supreme Court Criticism of Biden’s forthcoming black woman nominee isn’t ‘racially tinged.’
President Biden hasn’t yet chosen his nominee to replace Stephen Breyer on the Supreme Court, but already any criticism is being ruled off-limits by the progressive auditors of political debate. Witness the assault on Ilya Shapiro, a legal commentator, for daring to challenge Mr. Biden’s pledge to choose his nominee first and foremost on the basis of gender and race.
Mr. Biden pledged during the 2020 South Carolina primary campaign to select a black woman for the Court, as a way to win the support of influential Rep. James Clyburn. The gambit worked. Mr. Clyburn endorsed, Mr. Biden won in the Palmetto State, and he went on to defeat Donald Trump.
The President reiterated his black woman pledge this week, and he was criticized by many, including us, for putting identity politics above qualifications. Mr. Shapiro, a scholar at the Cato Institute, took to Twitter with his commentary on Wednesday.
“Objectively best pick for Biden is Sri Srinivasan, who is solid prog & v smart. Even has identity politics benefit of being first Asian (Indian) American,” Mr. Shapiro wrote. Mr. Srinivasan is the Chief Judge of the D.C. Circuit Court of Appeals. “But alas doesn’t fit into the latest intersectionality hierarchy so we’ll get lesser black woman,” Mr. Shapiro added.
Mr. Shapiro triggered the rage of the legal left, which is, as ever, playing the race card. “The carping over Biden’s Supreme Court pledge is historically inaccurate and racially tinged,” declared a headline over a Washington Post column by deputy editorial page editor Ruth Marcus.
“Racially tinged?” We guess that’s what you write if you want to accuse someone of racism but know it would be a canard to say so. Mr. Shapiro was endorsing a minority candidate in his tweet, albeit an Asian who is a man. He has also apologized for his ugly choice of words. But the racial tinge was applied by Mr. Biden in his criteria for his judicial selection. Is it taboo to comment on the use of a racial litmus test that a President has himself made explicit?
The hilarious part is that, after she lambastes Mr. Shapiro (and us), Ms. Marcus ends up agreeing with most of our point. “Would I be more comfortable if Biden hadn’t been quite so explicit? Yes. Partly because it carries an aura of unfairness to announce that no one will be considered who does not meet an announced racial test,” she writes.
So it’s okay to use a racial test for judges as long as it’s not explicit, but anyone other than Ruth Marcus who criticizes the explicit racial test is “racially tinged.” What she’s really saying is that conservatives are right in their criticism but only liberals can say so.
The ugly part of this is that Ms. Marcus and others have teed up Mr. Shapiro for potential cancellation by the Georgetown Center for the Constitution, where he is soon to be executive director. William Treanor, the dean of the Georgetown University Law Center, denounced Mr. Shapiro’s tweets in a statement Thursday and was contemplating how else to respond as we went to press on Friday.
Mr. Shapiro has deleted the offending tweets and sent a letter to “Dean Treanor and Georgetown Community,” apologizing for “recklessly framed tweets” that don’t advance the mission of educating students, informing the public and engaging “in the battle of legal ideas.” The dean should let Mr. Shapiro keep his new job.
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The larger issue in all of this concerns the debate over whomever Mr. Biden chooses to join the select group of nine Justices. Mr. Biden and his allies can’t say he’s choosing a nominee explicitly on the basis of race and then try to intimidate critics by claiming any criticism of the nominee is racist—or “racially tinged.” The Court and the public deserve a robust debate about the nominee, whether black, white, Asian, man, woman, whatever.
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