A Discriminatory Supreme Court Pick: The Senate Should Enforce The 14th Amendment Against Biden.

A pledge to nominate a black woman to the United States Supreme Court won Joe Biden plenty of laureates from the woke mob that thinks skin color is a virtue or an evil, depending on what color it is. It also drew plenty of howls from Republican and conservative attack dogs who couldn’t resist the opportunity to point out that Joe Biden committed to being a racist. The general consensus though is that there is no remedy to Biden’s racism. I disagree.

The clamor for appointing U.S. Supreme Court justices based on their gender and skin color has reached a fever pitch in recent years. When Justice Ruth Bader Ginsburg passed, many Republicans and conservatives urged Donald Trump to appoint a woman, Amy Coney Barrett, to replace her. To them, Barrett represented the politically convenient cure to their perceived lack of female representation on the Supreme Court. Her nomination and expected vote supposedly would add legitimacy to the expected repudiation of the Court’s precedents establishing a woman’s right to an abortion. Thus, Barrett’s qualifications took a backseat to her gender.

I did not favor Barrett as Trump’s pick. Even though she was qualified as a jurist, I believed that Judge Amul Thapar of the Sixth Circuit would make a better justice. I, however, did not dislike Barrett as a potential nominee until her gender became her overriding virtue. At that point, my view shifted from simply not believing that Barrett was the best nominee to disliking her potential nomination because of the motivations for it. Trump himself, however, apparently considered more nominees than just Barrett, and, while I suspect her gender played an important role in her selection, he did not openly commit to filling the late Justice Ginsburg’s seat with a woman.

To no one’s surprise though, Biden has stepped in it. He has excluded all men (regardless of skin color) and all women except black women from even being considered for a nomination to the United States Supreme Court. The Fourteenth Amendment does not permit even the government to discriminate on the basis of race in such a fashion, and Title VII applies the same rule to private businesses. Thus, as he often does, Biden committed a constitutional gaffe of historical proportions.

To those commentators who claim that there is no legal remedy, I agree only so far as that claim pertains to a remedy that a court can deliver. The appointment of Supreme Court justices is a non-justiciable political question that the United States Supreme Court and all other United States courts do not have the jurisdiction to hear. In other words, the United States Constitution gives the sole power of appointing Supreme Court justices to the President and the Senate.

The lack of judicial intervention, however, does not relieve anyone else of their responsibility to adhere to the Constitution. The Senate still possesses the authority to act as a check-and-balance on Biden’s decisions regarding the appointment, and there is no constitutional provision that says only the Supreme Court can apply the Fourteenth Amendment. In other words, the Senate can, and should, apply the Fourteenth Amendment to prevent Biden from discriminating in the nomination process.

How?

The Senate should decline to afford a hearing to Biden’s nominee until he provides public documentation that he has cast a wide net for the most qualified jurist based on their merits as judges and nominated him/her on the basis of their qualifications as judges, not on the basis of characteristics such as race or gender. Once Biden has nominated someone, the Senate should engage in an especially strict scrutiny of the person’s judicial qualifications, including by comparing him/her to other possible nominees, to ensure that they do qualify to sit on the highest court in the land.

If Biden and the nominee fail this scrutiny, the Senate should refuse to even vote on the nominee, or it should overwhelmingly decline to confirm the nominee.

As Trump did with Barrett, Biden can select a black woman who is well-qualified for the Supreme Court, but, if he taints that nomination by limiting its candidates by race and gender, the Senate should reject his racism and sexism, and it should decline to even vote on the nominee because Biden’s selection process violates the fundamental principles of equality established by the Fourteenth Amendment. In other words, the President is not above the Constitution even when the courts cannot intervene, and the Senate should take the opportunity to remind him of that.

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