George Washington University law professor Jonathan Turley wrote Tuesday that Democratic presidential frontrunner Joe Biden’s pledge to nominate a black woman to the U.S. Supreme Court over the weekend amounted to unconstitutional race and gender discrimination.
“Even with identity politics, the pledge to impose a gender and race requirement for the next Supreme Court nominee is as ironic as it is troubling,” Turley wrote in an op-ed for The Hill. “What Biden was declaring, and what Sanders wisely avoided, would effectively constitute discrimination in admission to the Supreme Court. Indeed, the Supreme Court has declared that such race or gender conditions are strictly unconstitutional for admission to public colleges.”
Biden made the pledge during Sunday evening’s primary debate with Sen. Bernie Sanders as part of his campaign platform to strive for equal gender and racial representation in government.
“I commit that if I’m elected President and have an opportunity to appoint someone to the Courts, I’ll appoint the first black woman to the Courts. It’s required that they have representation now. It’s long overdue,” Biden said. He then promised his cabinet would “look like the country,” and promised to choose a woman as his vice president.
Turley, who gained national notoriety last year as the lone expert witness called by House Republicans during the impeachment inquiry against President Donald Trump, said that while Biden is free to use any criteria when evaluating his choice for a running mate, the same is not true of choosing a Supreme Court justice.
“Justices, however, are lifetime appointees, and presidents have always been careful to state that, while they seek diversity among their nominees, they would appoint the most qualified person regardless of race, religion, gender, or sexual orientation. But in a single declaration, Biden quickly dispensed with even the pretense of equal consideration,” Turley wrote. “Imposing an absolute requirement that a nominee be a particular gender and race is effectively an affirmative action pledge. It is precisely what the Supreme Court already declared to be unconstitutional discrimination.”
The law professor went on to discuss the High Court’s affirmative action decisions over the last half-century, concluding that precedent forbids race from being used as a “critical element” in making such a decision.
Turley then named some names that Biden essentially said he would not consider for the role.
“Biden has taken the position that he will not consider any candidate who is a man or a woman who is white, Asian, Hispanic, or other minority that is not black, no matter how qualified,” he wrote. “He would not consider a nominee like Ruth Bader Ginsburg because of the color of her skin. He would not consider Thurgood Marshall because of his gender. Louis Brandeis and Oliver Wendell Holmes would be losers under this policy. Indeed, this is just ironic for those four members of the Supreme Court who have voted consistently to uphold admissions policies based on race.”
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