The Diversity Scam

It’s not news at this point that President Biden preemptively determined that he would exclude close to 95% of the population in looking for his first Supreme Court nominee, and restrict the search solely to black women.  Excluding almost everyone in advance is a remarkably stupid way to go about making critical SCOTUS appointments, as three quarters of the electorate took little to time figure out.  The excuse being given for the blanket exclusion of black men, white men, white women, Hispanics, Asian-Americans and anyone else you can think of is  —  ready now?  —  diversity.

That this is preposterous on its face is not the point I want to make, since that’s too obvious to be posting about.  Instead, the point worth noting is that, according to one quite prominent leader in Washington, DC, it’s not really about diversity at all.

I bring you today’s note from my friend Ed Whelan, writing in NRO’s Bench Memos:

Okay, this is news from 2005. As Joseph Epstein reminds us in his Wall Street Journal column today (nicely titled “The Unbearable Lightness of Biden”):


[Joe Biden] considers himself a champion of African-Americans, yet he eulogized Sen. Robert Byrd, a Klansman in his youth, and the longtime segregationist Sen. Strom Thurmond. The man who now promises to appoint a black woman to the Supreme Court is the same man who warned in 2005 that if President Bush nominated Judge Janice Rogers Brown, “I can assure you that would be a very, very, very difficult fight and she probably would be filibustered.”

In his typical bumbling fashion, Biden actually botched his filibuster threat—he couldn’t keep those female judges straight—and had to correct it. Here’s the excerpt from the “Face the Nation” transcript from July 3, 2005:


Sen. BIDEN: And so I did not want to limit it to the committee but I did–that did not mean that if you let it out of committee that you weren’t eligible to filibuster it. And–but I have no intention of filibustering, but he–it depends on who the president sends. But I could see a circumstance–for example, if he sent up Edith Jones I can assure you that would be a very, very, very difficult fight and she probably would be filibustered.

Ms. GREENBURG: What about…

ROBERTS: Well, what…

Ms. GREENBURG: …Janice Rogers Brown, someone else?

Sen. BIDEN: Excuse me. I’m not–by the way, I misspoke. I misspoke. Janice Rogers Brown is what I meant to say.


Don’t let Biden apologists pretend that Biden was just predicting a filibuster and not clearly threatening it. In a Senate with 55 Republicans, it is absurd to think that a filibuster might have succeeded without Biden’s support. Biden was one of 25 Democrats who tried to filibuster Samuel Alito’s nomination, so he was hardly someone who would have been among the six votes needed to defeat a filibuster of Brown.

Biden and other Democrats, it’s worth emphasizing, so vigorously opposed Janice Rogers Brown in part because of her race and (to a lesser degree) her sex. They opposed her because of her judicial philosophy but their opposition was intensified because they especially despised the prospect of a libertarian conservative justice who was a black female.  ###


That then-Sen. Biden was resolute against what would have been the first black woman on the Supreme Court tells you all you need to know about the authenticity of his present supposed love of “only-black-women-need-apply” diversity.

It has zip to do with diversity.  What it has to do with is, first, a political payoff to Rep. Jim Clyburn for Clyburn’s essential help is the South Carolina Presidential primary; and, second and more important, making it politically more awkward for Republicans to oppose what is likely to be a consistently pro-criminal vote (Judge Ketanji Brown Jackson, the leading contender, spent eight years zealously safeguarding the interests of criminals when she was in the Public Defender’s Office).  Pres. Biden would like to smuggle Judge Brown Jackson onto the Court in the guise of the very diversity he so strongly opposed 17 years ago.  What he’s actually trying to do with his (now) pious talk of diversity, though, is make opposition to Judge Brown Jackson’s uniformly pro-criminal record seem racist.  This is despite the fact that criminals prey grossly disproportionately on blacks.

This convoluted, agenda-driven dishonesty is what, in the present administration, the consideration of Supreme Court appointments has become.

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