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Biden's SCOTUS Pledge: Unfair and Unprecedented - Jonathan Turley


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Fox News

With the retirement of Supreme Court Justice Stephen Breyer, President Joe Biden was immediately challenged by Democrats to make good on his pledge during the 2020 presidential campaign to only consider black females for his first vacancy on the Court. 

When he made that pledge, some of us raised concerns that he was adopting a threshold racial and gender qualification for the Court. That claims were immediately challenged by liberal commentators and their authority was somewhat surprising: Ronald Reagan. 

They insisted that Ronald Reagan made the same pledge to only consider a woman for his first vacancy. The claim is false and indeed the Reagan example shows why Biden's pledge was both unprecedented and unnecessary.

In his campaign, Biden made two pledges to voters and asked his opponent to do the same to nominate only a black woman for the next open Supreme Court seat and to choose a woman as his vice president.

As previously discussed, the Supreme Court has repeatedly rejected such threshold exclusions on the basis of race or gender as raw discrimination. In 1977, the Court ruled in Regents of the University of California v. Bakke, that affirmative action in medical school admissions was unconstitutional. The justices declared that preferring "members of any one group for no reason other than race or ethnic origin is discrimination for its own sake" while adding that "this the Constitution forbids."


Biden's controversial use of racial and gender criteria will only grow in the coming months as the Supreme Court considers two new cases involving racial preferences in college admissions. Those cases may now be heard before a Court with one member who was expressly selected initially on the basis of not of a racial preference but a racial exclusionary rule.

Various commentators insisted that Biden did exactly what Reagan did in 1980 when he pledged to appoint a woman to the Court. The comparison, however, shows the opposite. Reagan did not exclude anyone other than women in being considered while making clear that he wanted to give one of his vacancies to a female candidate.

On Oct. 15, 1980, Reagan declared that "I am announcing today that one of the first Supreme Court vacancies in my administration will be filled by the most qualified woman I can possibly find. … It is time for a woman to sit among the highest jurists.":snip:

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