Turley: Biden's Black, Female Supreme Court Requirement 'Unconstitutional' in Other Contexts

George Washington University Law School professor Jonathan Turley noted Wednesday that President Joe Biden’s criteria for a new Supreme Court justice — that she be black and female — are “unconstitutional” in other contexts, according to the Court itself.

Turley was commenting in the wake of news earlier in the day that Justice Stephen Breyer, 83, would be retiring at the end of the current Court term — an announcement that apparently took Breyer himself somewhat by surprise.

Biden promised during the 2020 Democratic Party presidential primary to nominate a black and female justice to the Court at the first opportunity. Turley wrote at the time:

In his debate with Bernie Sanders, Joe Biden made two pledges to voters and asked his opponent to do the same to nominate only a black woman for the next open Supreme Court seat and to choose a woman as his vice president. Even with identity politics, the pledge to impose a gender and race requirement for the next Supreme Court nominee is as ironic as it is troubling. What Biden was declaring, and what Sanders wisely avoided, would effectively constitute discrimination in admission to the Supreme Court. Indeed, the Supreme Court has declared that such race or gender conditions are strictly unconstitutional for admission to public colleges.

The pledges that Biden has made amount to this. No matter how qualified men or, in the case of the Supreme Court, women who are not black may be, he will not consider them as candidates. In the case of vice president, such gender discrimination would be allowed, as presidential candidates can select a running mate on any grounds and voters can decide if they approve. Justices, however, are lifetime appointees, and presidents have always been careful to state that, while they seek diversity among their nominees, they would appoint the most qualified person regardless of race, religion, gender, or sexual orientation. But in a single declaration, Biden quickly dispensed with even the pretense of equal consideration.

Imposing an absolute requirement that a nominee be a particular gender and race is effectively an affirmative action pledge. It is precisely what the Supreme Court already declared to be unconstitutional discrimination.

Turley reiterated his criticism on Twitter on Wednesday:

Jen Psaki just reaffirmed that the President will only consider a black woman for the next nomination — a threshold gender and race condition that the Court itself has found unconstitutional for schools and unlawful for private businesses. https://t.co/uzc5jInAlg

— Jonathan Turley (@JonathanTurley) January 26, 2022

I have received a lot of calls over my earlier column on Biden’s pledge to only appoint a black female in the next nomination. https://t.co/uzc5jInAlg It was entirely unnecessary and now adds an unnecessary controversy for the next nominee.

— Jonathan Turley (@JonathanTurley) January 26, 2022

The National Review pointed out, similarly, that Biden had eliminated a generation of “progressive’ jurists with different racial and gender labels: “Biden has unwisely limited his options by preemptively declaring during the 2020 campaign that his first Supreme Court nominee would be a black woman. In a stroke, he disqualified dozens of liberal and progressive jurists for no reason other than their race and gender. This is not a great start in selecting someone sworn to provide equal justice under law.”

Though unconstitutional, it is not clear that the racial and gender criteria Biden has identified for selecting a Supreme Court justice would be subject to legal review by the Court under the Political Question Doctrine.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.

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