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.
the Aspen beat 
Glenn … you’ve read my mind.
I still wonder if this is so blatant that SCOTUS (even theoretically) refuses to accept and join with Biden’s nominee.
Bravo Zulu!
In your comment on Glenn’s prior post, I believe you called this “the new American apartheid.” Clearly Biden is Building Back Better: whereas in the old days we discriminated against roughly 10% of the population, now we’re discriminating against some 80 to 90% of it. Progress!
I don’t think that they would even stop at 80 – 90%.
I had corresponded to a conservative millennial writer/columnist some time back (during the Obama era) about how and why books and films like “The Hunger Games” are so popular, especially with millennials and younger generations. Yet, these younger demographics were so supportive of Obama and his centralized power policies, much in the way that is depicted in The Hunger Games.
About a decade ago John Stossel did a show about the consolidation and centralizing of wealth and power in the Washington, D.C. area. He noted how upscale shopping districts on par with Beverly Hills’ Rodeo Drive were popping up like early morning toadstools through Northern Virginia and nearby areas in Maryland. Stossel visited car dealerships like Rolls Royce, Ferrari, Lamborghini, etc., while also visiting exclusive shops selling those Louis Vuitton bags, high perfumes, etc. These types of retail vendors did not exist in the Metro D.C. area a couple decades earlier. According to Stossel, these upscale retailers reflected the continued concentration of wealth and power in the Capitol, much as is seen in the fictional Hunger Games series.
Anyways … the point I was making to the millennial writer was how so many people of that generation seem to have a disconnect between The Hunger Games (which they like and I suppose they were against the depicted dystopia) while at the same time supporting Obama policies that put us on the road to that centralized power dystopian society.
I am beginning to wonder if your cited 80 – 90% is a bit low, and it is really about targeting and yoking the 98 – 99% to the benefit of the ruling 1 – 2% and their armed praetorian guard to keep everyone else in their place.
21st century new American apartheid is what we seem to be sliding into … like in 20th century South Africa in which a small wealthy elite rule and control everybody else, but by any means, including by race, economic status, education status, sexual identity, whatever.
The Hunger Games is supposed to be a cautionary tale … not a how-to instruction guide. Perhaps this is what Biden and his ilk mean by “transforming America.”
Cry, the Beloved Country.
Nearly every one of those American lawyers being discriminated against won’t have the courage to display their disgust with this overt discriminatory act.
Fear. A powerful tool in America.
Why the tumult? This is just the quiet part of affirmative action spoken out loud. The courts have all kowtowed to that blatantly unconstitutional monstrosity for two generations. Nothing new here. Nothing to see. Just move along, honkie.
Biden is essentially using “Affirmative Action,” a social equity tool that has always been questioned by the people it disfavors. (Smart Asians in the Harvard law suit.) Also, Biden is keeping a political promise he made to get elected. Justice and politics, though inseparable, have never mixed well. This is going to be really interesting. Sadly, it’s also going to keep dividing us.
Glenn, I’m not aware of any instances of anti-discrimination laws being applied to political or judicial appointments. Do know of any? You’re a lawyer and I’m not, so you should have a better idea than I do about whether a lawsuit against Hunter’s dad about this stuff would get anywhere, but my guess is that it would not get anywhere.
The government is bound by the civil rights laws. The reason you are not aware of a suit under the civil rights laws for a Judicial or political appointment, is that until Biden no one had been stupid enough to explicitly discriminate
Thanks for the reply.
“The government is bound by the civil rights laws.”
But universities blatantly violate civil rights laws and they get away with it. If anything, I’m pretty sure the government and the accreditation agencies would find ways to penalize a research university that did not violate civil rights laws.
I’ll be very surprised if a lawsuit against The Big Guy on this gets anywhere, but I hope somebody at least gives it a shot.
No, Calvin, they discriminate against whites but they don’t do it “blatantly.”
No universithy has ever admitted, and no university ever will admit, that they specifically reserve spots for minorities. They do, of course, but they’ll never admit it. Harvard is a good example. It’s obvious to me that they discriminate against Asian applicants, but what they say is that the Asians just happen to do worse in the personality category.
What Biden did here was to specifically and explicitly admit — even boast — that he’s discriminating against all races and sexes other than black women. That admission is a first.
George Washington Carver Full-Tuition Scholarship [at Iowa State University]
https://iastate.academicworks.com/opportunities/41930
“To be considered, students must identify as American Indian or Alaskan Native, African American, Asian, Pacific Islander, Desi American, Hispanic or Latino/a/x, or Multi-Racial on the application for undergraduate admission. A student must be a U.S. citizen, permanent resident, refugee, or asylee to qualify.”
So this is a scholarship for anybody EXCEPT whites. What could be more blatant that this?
I”m guessing that the GWC Scholarship is privartely funded. My quick research didn’t reveal the answer one way or another.
This George Washington Carver Full-Tuition Scholarship is definitely run by Iowa State University.
Even if it’s “privately funded”, is it not a violation of civil rights law for a public university to fund-raise for and to manage a racially discriminatory program?
I’ll bet it would be lawyerly fun for you to ask them why this scholarship program is not illegal.
You might even get a column out of it!
You’re certainly correct that the scholarship program is run by Iowa State University. But if it’s privately funded, that would probably make a difference. I have to admit, however, that I’m getting a little outside my area of expertise. Thanks for the heads-up, Calvin.
Glenn, a supreme court justice should chosen by merit not by race. https://northernvirginiaphotosandculture.wordpress.com/2022/01/30/merit-or-by-race-the-conundrum-that-faces-biden/
So, we can bypass Donald Trump for President as the actual victorious Republican can nominate him for the SCOTUS where his influence might be greater. I doubt that the GOP House & Senate would torpedo his nomination appointment.
When the left attempts to compensate for racial injustice, the goto solution almost always kicks merit to the curb, but it’s ok because… race. And around and around and around we go. Great column!
Affirmative action is racist and sexist.. poisonous to liberty, and evil..
Expect a transexual Black who goes by her preferred pronoun. Also expect most RINOS to confirm her or it, with Linsdey Graham leading the charge.
The US has become the shithole most Americans run from.