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Biden’s SCOTUS Nom Plan Irks the Irkable

Critics say his decision to put a black woman on the Court for the first time is “affirmative action.”
February 3, 2022
Not My Party: Affirmative Action Drama Hits The Supreme Court

[Editor’s note: Watch Not My Party every week on Snapchat.]

Ted Cruz: Biden . . . the fact that he’s willing to make a promise at the outset—“This Supreme Court nomination, it must be a black woman”—I gotta say, that’s offensive.

Donna Tubbs-Brown: Oh, poor baby!

Tim Miller: This is “Not My Party,” brought to you by The Bulwark. Justice Stephen Breyer is retiring from the Supreme Court, and now, Biden will come through on a core campaign promise.

Joe Biden: The person I will nominate . . . will be the first black woman ever nominated to the United States Supreme Court.

Becky Barnett (Nicole Ari Parker in Boogie Nights): That’s great!

Chancellor Palpatine: Quite specific.

Miller: As a result, a bunch of right-wingers are getting their panties in a wad about. . .

Dennis Vinyard (William Russ in American History X): Affirmative action.

Malory Archer: Affirmative action.

Sterling K. Brown (as Chris Darden in The People v. O. J. Simpson): Affirmative action.

Ted Cruz: Affirmative action.

Miller: So, do they have a point?

Blanche Devereaux: Better be a good one.

Miller: Here are the basics. Conservatives are dominating the libs with a 6-3 advantage on the Supreme Court. Mitch McConnell goes hard in the paint on this Court, blocking Barack Obama’s 2016 nominee after Scalia died, and then slamming in Trump’s choice in the same spot four years later.

Jessica Spencer (Rachel McAdams in The Hot Chick): Well, that’s not fair!

Omar Little: It’s either play or get played.

Miller: So Democrats were rightly nervous when one of the three liberal justices, 83-year-old Stephen Breyer, was lollygagging on his retirement, given that Mitch might be back in power this time next year.

Mitch McConnell puppet from Let’s Be Real: Yes, of course!

Miller: Breyer resolved those concerns by retiring well ahead of the midterms, so Mutombo Mitch couldn’t reject this nominee, too. So you’d think this one would be a clean, no-drama affair, right?

Republican Mississippi Senator Roger Wicker put on his best old-timey drawl and warned that thanks to affirmative action, Biden is replacing a nice, stately liberal with someone like Latina Sonia Sotomayor, and that no matter who Biden picks, they probably won’t get a single Republican vote. This objection was echoed by the anti-woke all-stars.

Ben Shapiro: Joe Biden continued to reiterate that he will pick a black woman, which is kind of insane.

Miller: And things got real at Georgetown, where campus protests broke out after a right-wing lecturer called Biden’s TBD choice “a lesser black woman.”

Finn Mertens: Never say that!

Miller: Here’s how I see the situation.

Tim the Enchanter (John Cleese in Monty Python and the Holy Grail): Tim?

Miller: On the merits, this right-wing backlash is pretty stupid. Reagan had a litmus test in the ’80s when he made Sandra Day O’Connor the first woman on the Supreme Court. And for good reason. It only took 200 years.

Sandra Day O’Connor: A big surprise to me . . . certainly.

Miller: The Supreme Court is not like a college having racial quotas. There are only nine justices. There’s always gonna be a political reason for choosing one. It’s not like there are judicial SAT scores to compare. Diversifying perspectives on the Court is good. SCOTUS could probably use some more viewpoint diversity, like picking a non-Ivy Leaguer for once.

Billy Butcher (Karl Urban in The Boys): Well, don’t get too carried away.

Miller: And it’s likely that Biden will pick someone with far more experience than Trump’s last choice, Amy Coney Barrett, so the whole “undeserving affirmative action hire” argument will be moot, anyway,

Mark Corrigan (David Mitchell on Peep Show): It’s a moot point!

Miller: The current favorites are Ketanji Brown Jackson or J. Michelle Childs, so if you’re a Resistance Mom lurking on Snapchat, get ready to fire up for your KBJ or JMC merch.

But here’s the tricky part. Despite all the upside, the appearance of affirmative action hires, and the cringey overemphasis of it, it’s bad politics for the Democrats. Outside the lefty bubble, people just don’t like it. Just two years ago, here in deep blue California, the voters overwhelmingly killed a ballot initiative that would have let the state government make hires based on race or sex. And last week, Bill Maher pointed out this shocking statistic.

Bill Maher: Sixty-two percent of black Americans say colleges and universities should not use race as a factor in admissions.

Shrek: Really?

Miller: I actually don’t agree with that, but that poll shows you how unpopular that position is. Asian Americans are bringing a case to the Supreme Court arguing that they are hurt by racial considerations in college acceptance rates.

YouTuber “Anxious Joe”: The college admissions process is not even close to being a merit-based process.

Miller: Representation matters, but Democrats do better politically when they’re fighting for social justice for all rather than obsessing over racial quotas for some.

Donkey (Eddie Murphy in Shrek): Really, really.

Miller: So, yeah, performative right-wing outrage over this SCOTUS pick is silly, and a little racist. But politically speaking, Biden would have been best off looking at all the options and determining that KBJ or JMC were the best based on a full range of reasons—qualifications, judgment, and yeah, diversity of viewpoint that’s long overdue.

Animated Ronald Reagan (from Hey Arnold!: The Movie): Out with the old, in with the new.

Miller: See you next week for more “Not My Party.” And I told you all about that Joe Burrow! That boy is back!

Tim Miller

Tim Miller is The Bulwark’s writer-at-large and the author of the best-selling book Why We Did It: A Travelogue from the Republican Road to Hell. He was previously political director for Republican Voters Against Trump and communications director for Jeb Bush 2016.