The White House last week leaked word of Justice Stephen Breyer’s imminent retirement. The leak forced Justice Breyer to accelerate his plan to the following day, rather than waiting until the end of the Supreme Court term in June, as typically happens.
Accelerating Justice Breyer’s plan was not an incidental outcome of the White House leak. It was the intended outcome.
And it worked, for a moment anyway. Attention has been diverted from Joe Biden’s ongoing bungling of Ukraine, the economy, COVID, the border, Afghanistan and his plummeting poll numbers, by a renewed focus on his campaign promise to nominate a black woman for the next Supreme Court opening.
Indeed, the very next day Biden repeated that promise. He explicitly stated that he would replace Breyer with a black woman. Anyone not a black woman need not apply for the job.
Limiting the job applicants to black women, it should be noted, reduces the applicant pool considerably. Black women are about 2% of American lawyers.
This is illegal racial discrimination under an array of federal and state civil rights laws. Imagine if an employer announced in a job posting that they would refuse to even consider certain races for a job opening.
As a practical matter, of course, employers do refuse to consider certain races for certain job openings. Try getting the job of Diversity Coordinator at a big company if you’re a middle-aged straight white guy. Imagine trying to get into Harvard today if you’re a Jewish white kid – or, even harder, an Asian kid.
But the employer never admits, much less boasts of, this discrimination. They have instead perfected the duplicity of boasting of their “diversity” effects while denying its discriminatory causes.
Employers engage in this deceit because their discrimination is plainly illegal. It’s illegal to discriminate in hiring on the basis of sex and skin color. Employers consequently say they don’t discriminate even as they establish vast bureaucracies to do exactly that.
Biden is either more honest than these employers or perhaps just less skilled in duplicity. He boasts of both his diversity and the discrimination that produces it. He has overtly, explicitly and proudly stated that he will rule out 98% of the qualified people for this opening on the basis of their sex and skin color.
That 98% of American lawyers – amounting to a number over a million – have a clearcut lawsuit against Biden and the U.S. government. Expect some of those lawyers to file that suit, including savvy political lawyers at places like Judicial Watch and the Federalist Society.
You too have a claim. Although having dark skin and no penis is a necessary qualification for this opening at the Supreme Court, technically a law degree is not. In fact, for the first century of the Supreme Court’s existence, none of the justices had law degrees because there were no law schools until the early 20th century.
That means the pool of potential plaintiffs in the civil rights claim against Biden and the government is nearly the entire population of American adults.
I foresee some entertaining political theater. Claims will be filed in numerous courts and with the Equal Employment Opportunity Commission. Maybe some aggressive lawyers will seek temporary restraining orders and preliminary injunctions which would be heard about the same time as the senate confirmation hearings. Decisions will wind their way up the appellate courts culminating in, you guessed it, the Supreme Court.
Apart from the politics and apart from judicial and legislative hearings, it’s high time we had a nationwide hearing on racial discrimination. The suit against Harvard by disfavored Asian applicants which the Supreme Court coincidentally agreed last week to hear, and now this candid brag by Joe Biden that he will racially and sexually discriminate in his Supreme Court nomination, have set the stage.
Chief Justice John Roberts wrote in a case years ago, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” I agree. Let’s see if Roberts still does.
Glenn Beaton is a retired lawyer who practiced in the federal courts, including the Supreme Court.