President Biden’s Supreme Court nomination

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    Obviously, President Biden’s promise to nominate a black female as a Supreme Court Justice rubs many of us the wrong way, as it seems that the only deciding factor should be that they’re the most qualified, regardless of race, religion or gender. President Reagan did something very similar in the ’80s when he primised to nominate a woman to the Supreme Court and subsequently nominated Justice Sandra Day O’Connor. Is he guilty of the same identity politics and misuse of power as President Biden?


    Simcha: Yes. Reagan was absolutely wrong on that. If the nine Supreme Court justices, selected due to their being the most qualified candidates, were all White Anglo-Saxon Protestant men, then G-d bless all those male WASP justices. And long may they serve.

    Bean counting has no place in selecting the most qualified candidates.


    Since when has SCOTUS nomination been about the most qualified individual? How would one even go about determining what/who the most qualified jurist is? To think that presidents nominate the most qualified and impartial person to be on the Supreme Court is a laughable notion that is historically inaccurate or at best – wishful thinking.

    Reb Eliezer

    The way it should be chosen by looking at all candidates, white or black and men or women, by putting a weight on qualities and if the total weight is equal, we can choose a black women.

    bored_teen 💕

    Yes, both are wrong!


    Reb Eliezer, even if the two most qualified candidates were equal to each other, it is absolutely wrong to use race or other such factors as a tie breaker. Race and such should have absolutely no bearing whatsoever in making the selection.

    Would you be okay if the white guy was selected over an equally qualified black candidate simply because he’s white?

    The reality is when they specifically select a minority or woman or other such criteria to the detriment and exclusion of white guys, they’re selecting a clearly less qualified minority candidate.


    A good question. I think this is the answer: it is one thing to have courtesy of appointing a woman when none are on the court, or appoint a black man instead of the other (not that this was appreciated by any true progressive), but now we are making a multi-dimensional grid: someone has to be both right color and right gender. This is most weird for the supreme court – that is supposed to consist of lawyers, not representatives of aggrieved groups. During some previous confirmation when the mental ability of a candidate was questioned, someone quipped that stupid people also need to be “represented” in the court.


    ujm, not sure about anglo-saxon men, but Catholics and Jews are overrepresented onthe court for some time.


    NIRC > Since when has SCOTUS nomination been about the most qualified individual?

    American system is built on interests opposing each other. So there are no rules that every decision is done genuinely according to certain ethical principles. Still, there are some social conventions that help make this fight more civilized. In this case, 75% of Americans oppose binning candidates, so this is not appropriate.


    “…but Catholics and Jews are overrepresented on the court for some time. ..

    So are members of the Federalist Society and their ilk….


    Federalists are not protected minorities. Ilks also.



    Nominating based upon skin color is racism and your denying it makes you a filthy racist.


    It is childish to think the Scotus nominee is the most qualified. What does that even mean? How is that determined. It is obvious a President won’t appoint a “more qualified” justice with a different ideology than his own, and nobody would suggest that he should .
    similarly there is obvious ly an age cut-off since the President wants to make a longer impact.

    So the only discussion is among equally qualified people is it wrong to give a prefrence to an underrepresented group.

    Often those opposed, accidently say the quiet part out loud . For example one poster wrote “The reality is when they specifically select a minority or woman or other such criteria to the detriment and exclusion of white guys, they’re selecting a clearly less qualified minority candidate.” The candidate hasn’t even been announced, yet somehow she is less qualified that the white guy.


    Why stop there? I think we should have a trans-androgynous non-binary Islamic disabled little person from Eritrea that is married to a parrot and a dog representing us!


    Maybe the “root cause”, pardon the word, is am-haartzus. People claim to look for “qualified”, but what they really mean is “minimally qualified”, without valuing maximal qualifications. And it adds up – the more “minimally qualified” people get power, the more they continue pushing other mediocre people into positions of power. So, anyone who can string a couple of words to construct an excuse for their failures, can become President, Sec of State, Supreme Justice… You may disagree w/ say Kissinger, but he is no Blinkin’.

    Reb Shlomo

    In the ideal world the most qualified individual should be the nominee. But this is the “real” world where everything is done according to politics. Biden promised Rep. Clyburn of South Carolina (who is black) that he would nominate a black woman to the Supreme Court as a payback for Clyburn having gotten him enough votes to win the presidential primary in South Carolina. Clyburn is now trying to take it a step further by asking Biden to nominate a specific black woman from South Carolina.


    Ethnicity and religion have always been factors in judicial nominees, along with politics. However Biden is the first president, ever, to announce that gender and race are the ONLY factors he’ll consider. All the other presidents claimed that all their nominations were based on the the qualifications of the person nominated (and what a surprise, it turns out to be the candidate supported by the person I owe a favor to, wink wink). This suggest that Biden is perhaps a bit mentally challenged, or (to be dan le-kaf zechus) he has decided that in his old age, he can afford to be honest about such matters.


    Akuperma says it better than myself or most of the other posts. Trump and other presidents have always said they would surround themselves with the “smartest people”, the “best managers” and the “most qualified” people for their appointments, whether judges or cabinet agency heads. With trump, there were some really good appointments (DOD, State, etc) who were either fired or resigned because they could not tolerate his meshugaas and the real drech such as his HHS, HUD etc cabinet secretaries who were incompetent sycophants who stayed around for years or were forced to resign for ethics violations.
    All Presidents know they will have to reward their political base and supporters with jobs regardless of competence. They lie when they say this person is the “best choice”. The truth is it may be the best choice given the self-imposed constraints on the universe of potential candidates I was willing to consider.



    Biden never said that gender and race are the ONLY factors.

    According to you, Biden can just walk into Harlem and nominate the first black female he sees.

    Biden is not stupid and not mentally challenged.

    He knows that the candidate is going to be grilled by the senate.

    He is going to be pick a highly qualified candidate. He has a lot of choices within the race and gender categories. Republicans are going trash anyone Biden nominates. (except for Lindsey Graham who already gave his total and absolute approval for J. Michelle Childs.)


    “However Biden is the first president, ever, to announce that gender and race are the ONLY factors he’ll consider.”

    Is that what he said?
    I agree that would be bad. I didn’t realize he said that .

    The quotes I saw were all along the lines of “The person I will nominate will be someone with extraordinary qualifications, character, experience and integrity. And that person will be the first Black woman ever nominated to the United States Supreme Court,”

    “In the ideal world the most qualified individual should be the nominee.”

    How would that work? What is the measure by which we could judge who is “most qualified” for the Supreme court.
    And are you saying that whoever has the highest measure, of whatever it means to be “most qualified” should be the nominee regardless of when he/she plans to retire regardless of ideology?

    Go for it, if that is important to you lobby the current administration or start supporting likely contenders for 2024. If enough of you support that you might get it


    Judge Childs would be a great appointee. She will being some diversity to the court because she didn’t go to an exclusive law school like every other Justice appointed to the Court in the past half century.


    I think that the last Supreme Court appointee who was universally agreed to be the “most qualified” was Benjamin Cardozo.


    Dems are doing disservice to their values (and of their voters) if they nominate an unqualified person. Wise Latina seems to be marginalized, nobody is taking her seriously. Justice Breyer was working with John Roberts to find compromises.


    Does ANYONE believe Clarence Thomas was the MOST QUALIFIED lawyer in the country to serve on the court? If so, please wait a few weeks so I can engage in a civil discussion as part of my adsheloyadah regimen.

    ☕️coffee addict

    Personally I think he should nominate someone who looks like a white male but identifies as a black female so he can check the black female box and also be politically correct

    It’s a win win for the wokeies


    Gadol, Justice Thomas had very visible senior positions in Missouri and Reagan administration before becoming a federal judge. Juliana Childs seemingly highest achievements are law firm partner and head of SC Department of Labor, Licensing, and Regulation. She may not be that liberal though – her father was a police officer and her mother moved away from Detroit due to violence there.


    AAQ: I’m very familiar with JT’s yichus and legal scholarship (or lack thereof) at the time of his nomination to SCOTUS. I’ll be glad to share some thoughts motzi shabbos.


    AAQ: Gut Vach

    Neither GHWB nor any other member of his administration ever claimed with a straight face that Justice Thomas was selected as “the most qualified” candidate for the Court. He
    attended Yale Law School as one of the first students to benefit from the very type of affirmative action/open admissions program of which he has now grown to hate and criticize. After graduation, he worked as a staff attorney with the Missouri AG and then as an LA for Danforth who connected him with Bush. In the post Civil Rights Act era, Bush Sr. was thrilled to associate his administration with a Black “conservative” Republican lawyer and quickly pushed him through several appointments in Dept. of Education, one year on the D.C. Circuit and then to SCOTUS.
    He was a competent, albeit undistinguished lawyer with no significant publications and a great story of overcoming personal challenges but was NOT the top lawyer or jurist available to Bush after one year on the D.C. Circuit to put on the the Supreme Court. All of this came a few years after one of the most memorable statements ever made on the floor of the U.S. Senate favor of a Supreme Court nominee ( Nixon’s nomination of Harrold Carswell). Responding to criticism (mainly Dems but some Republicans too) that Carswell had been a mediocre judge, the equally undistinguished Senator from Nebraska (Roman Hruska) took the floor and passionately argued:

    “So what if he is mediocre? There are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they? We can’t have all Brandeises, Cardozos, and Frankfurters and stuff like that there…”

    Shockingly, the speech failed to persuade Hruska’s colleagues, and the nominee withdrew.


    Gadol, now you are dismissing every step in Thomas’s career s benefiting from conservative affirmative action. With this approach, we will need to dismiss a lot of people.


    AAQ: Not at all. In fact, his fierce opposition to affirmative action is rooted in exactly the point you made…that once someone is tagged as having been the recipient of a some sort of racial prioritization early in his/her career they will be permanently judged on that basis.
    In Thomas’ case, he was a competent lawyer in both his Missouri role in the AG’s office and OK during his tenure as Danforth’s LA but certainly not viewed by anyone as a rising star in the legal community. I know we will just disagree about his tenure on the Court given how difficult it has become to abstract his extreme conservative views from legal scholarship.
    Whats most interesting is that he literally “found his voice” with Covid when the Court went to virtual arguments. He has asked more questions in the past 2 terms than in the prior 20 years.


    Gadol, I give you that he might not have been the choice if not race. What I am claiming is that he has zechuyot beyond his color, and he adds a certain position to the court. I have not heard anyone admiring the wise latina’s scholarship, but maybe I am not browsing in the right (left) circles


    AAQ: In an ideal world, judges wouldn’t have a “racial” or “ethnic” lens towards legal issues. Thats not the real world where at least 4 or 5 justices argue in favor of interpreting the constitution as it would have been when several of the original justices OWNED black people in servitude, indigenous people were viewed as subhuman savages, women were totally disenfranchised legally and economically, and both Asian and Hispanic populations were de minimis. The reality is that after 200+ years, judges appointed today from those historically unrepresented communities DO come to their jobs with both explicit and implict biases in their legal analysis and are not frozen into an “originalist” or “constructionist” approach to adjudiation.

    Giving both Thomas and Sotomayor the benefit of the doubt, I I guess I’m coming at it from the perspective of Sotomayor as more representive of the perspective of the roughly 18% of our population with Hispanic roots than the 12-14% with Black roots.
    I suspect we disagree on which of them is a better lawyer or a more intellectually gifted scholar but I’ll agree that neither is in the upper tier of Justices in recent history.
    On the other hand, look at the recent candidates for POTUS and try to explain why our country is unable to find more gifted individuals to lead the nation.

    Reb Eliezer

    They say people get what they deserve. Trump had no government experience at all, so he was never suited for the position.


    Gadol, not being an expert, I googled rankings of supremes by experts. From several samplings, Gorsuch and Kagan head the list. Thomas occupies between 3 to 5. Sotomayor between 6 and 8.

    While both are at the end of ideological spectrum, Sonya is also more ideological (score -4), Thomas 3 (next are Alito 2.2, Breyer -1.9, Kagan -1.5). That is Thomas is 0.8 away from the next, while Sonya is 1.0 more from Thomas.


    Thanks AAQ: I was totally unaware of those rankings but they sort of confirm my considerably less scientific intuitive assessments. Somehow, though, I would have placed Thomas and Alito together further to the right, than Sotomayor is to left, but obviously that reflects my own “leftist” political vertigo.


    Maybe the difference is that Thomas (as I understand it) holds by a judicial philosophy that just happened to be “right wing” as much as it does not allow innovations by judicial fiat and requires Congress to actually vote. At the same time, liberal justices need to find a basis for each of the new interpretations they are voting for. This comes as much more naked partisanship.


    Sort of like an MO rav having to struggle to find some inyan to justify deviating from long-accepted hashkafah versus a more traditional rebbe rolling his eyes and in a single breadth intoning something that sounds like “torahmoshemisinaiandthatswedidinthealteheim”


    Gadol, exactly. Except Jews are more advanced. We don’t really have traditionalists like Thomas. As we discussed here many times, most Jewish groups are doing things differently now than centuries ago – nobody wore black during Gemora times except in the act of committing a sin (Moed Katan); 400 kids studied in an only Volozhin yeshiva 200 years ago, etc. But, similarly to Thomas, the latter “innovations” sound less like innovations.

    On a more theoretical level, there is a difference between “originalism” in interpreting Torah and interpreting a humanly produced contract.


    “We can’t have all Brandeises, Cardozos, and Frankfurters ”

    The first three Jewish Supreme Court Justices!

    Brandeis’s nomination by Wilson brought out every anti-Semitic Jew hater in America. He was the first SC nomination to be forced to have hearings in the Senate and his confirmation was delayed by months. Wilson’s previous appointment had been James McReynolds, the most anti-Semitic SC Justice in US history. Interestingly, Brandeis had been a Republican.

    Cardozo’s nomination 16 years later by Hoover was the opposite. It brought Hoover enthusiastic praise from all parts of the political spectrum. It may have been the last time that there was wide agreement that the best judge in America had been appointed to the Supreme Court. Interestingly, Cardozo was a Democrat.

    Frankfurter’s nomination 8 years later brought a return to the past. Not only anti-Semites but nativists (Frankfurter had been born in Vienna) joined the opposition. Frankfurter was the first nominee to have to appear in person before a Senate committee. Frankfurter was as political independent.

    All three believed in judicial restraint, trying to avoid overturning actions by the legislative or executive branches. Brandeis and Cardozo often dissented from decisions by the Hughes Court overturning New Deal legislation; Frankfurter often dissented from decisions by the Stone, Vinson, and Warren courts.

    Sadly, none of the three seemed to have the slightest interest in Judaism. Brandeis’s family had been Frankists and he himself had no interest in Judaism until for some reason in the 1910s he suddenly became a passionate secular Zionist. Cardozo admitted that he was agnostic although he did contribute financially to an orthodox Synagogue, Shearith Israel in New York City. Frankfurter was descended from rabbis, but was completely disinterested in religion, married a Christian minister’s daughter, and on the court consistently voted against expanding First Amendment religious freedom protection.


    Was their restraint genuine or useful to advance new Deal? Obviously, total restraint is the same as eliminating one element of checks & balances from the federal government, especially during “progressive” era.


    The three went to their graves as unrepentant sinners. Jews are embarrassed of them.


    UJM: Not much different from most secular Jews of their generations whose public service seemed totally detached from their yiddeshkeit and who in some cases kvelled at the success of their assimiliation in a goiyeshe velt (as measured by their “acceptance” in the club). There were a few exceptions but not many. All three, however, seemed to reflect the growing loss of a “centrist” wing on the court or in the body politic overall.


    I don’t know about you, but I prefer that Biden focus on meaningless external things like gender and race when choosing a nominee rather than picking the one who he feels would be the most opposed to the conservative justices and most “progressive”.


    YS > prefer that Biden focus on meaningless external things like gender and race

    I agree – I hope he will be busy doing supreme nomination for months instead of pushing more trillions out the door (they still did not start working on building what they voted for last year, I guess it is good). The fact that he might not have bandwidth for Covid and Putin viruses is ore worrisome.


    “total restraint is the same as eliminating one element of checks & balances from the federal government, especially during “progressive” era.”

    Their restraint was a reaction to the excesses of the notorious “Lochner” era in which the Supreme Court repeatedly tossed out attempt after attempt to provide any sensible economic regulation at either the state or federal levels. Brandeis and Cardozo felt that it was appropriate for State and Federal Governments to take actions to make markets fairer (Brandeis had been a huge anti-monopoly advocate) and to relieve human misery during the Great Depression and that the courts shouldn’t be trying to legislate. But they even voted along with the majority in A.L.A. Schechter Poultry Corp. v. United States to rule the National Recovery Act unconstitutional.

    Frankfurter didn’t join the Court in time for the New Deal cases. (He took Cardozo’s seat.) But he in general was quite hostile to having the courts overturn what legislatures had done, objecting for example to the Court trying to enforce religious freedom mandates. He would be horrified by the current Court.


    To Gadol Hadorah: I well remember Republican Senator Roman Hruska’s plea for mediocrity, but I have forgotten the last part of the comment you referred to, i.e., that all judges cannot be Brandeis’es, Cardozo’s or Frankfurter’s. It is curious that he picked 3 Jewish justice of the Supreme Court to single out as examples of some elite group. I have no idea whether Hruska was being anti-Semitic, anti-elitiest, pro-stupid or something else altogether.

    For what it is worth, I think we are overdue for a justice who is not from the 5 Boroughs (e.g., Kagan, Sotomayor, Ginsburg, Scalia), the Northeast, Harvard or Yale or a prep school. The possible nominees so far include a woman who went to a state university and state university law school. I think her time is long overdue, whether she is black, white or other.


    “I think her time is long overdue, whether she is black, white or other.”

    To huju: While you disagree with Mr. Biden, Old Joe in the White House does insist it be a person of African descent and not an Asian, Caucasian or “other”.

    Regarding your agreement with Joe that it be a she and not a he, Hashem has very good reason to insists judges only be a He.


    Charlie, thanks for the history. From a longer perspective, interesting to note how government role in economy of creating markets by, inter alia, protecting against monopolies, morphed into government monopoly in so many parts of economy, which is much harder to fight. From your description, Brandeis would be a reaganite in our times


    “Regarding your agreement with Joe that it be a she and not a he, Hashem has very good reason to insists judges only be a He….

    Presumably, the Ebeshter also would have voted against (i) the 19th Amendment in 1920 (ii) confirmation of Sandra Day O’Connor as the first woman justice of SCOTUS in 1981 and (iii) Esther Hayut as Chief Justice of the Supreme Court of EY in 2017 but records show abstentions in each case. Perhaps there was a change in those “very good reasons” somewhere along the way.


    Ghadora: Does Kayin having killed Hevel also demonstrate, per your above logic, that the Eibeshter’s opposition to murder changed somewhere along the way? And that the Yidden’s mass worship of the eigel whilst Moshe Rabbeinu was away demonstrates the Eibeshter’s previous opposition to Avoda Zora also changed somewhere along the way? As you argue, the record shows that the Eibeshter “abstained” in each of those cases.

    Presumably you also argue for the righteousness of abortion, toeiva, and blasphemy, as they too are all fully legal and constitutionally protected practices in modern Western society, apparently demonstrating the Eibeshter’s “abstentions” and thus change in reasoning somewhere along the way.

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