Confirmation bias: The fighting has already begun, and Biden hasn’t even named a nominee

The late Sen. Ted Kennedy (D-Mass.) once said that “Supreme Court nominations are an occasion to pause and reflect on the values that make our nation strong.” As a new confirmation process is about to begin, Kennedy’s words could guide us, if only we could agree on what those values are.

Confirmations often are a reflection of our political divisions and even our rage. Even with that history, the confirmation fight over replacing Justice Stephen Breyer sets a new and ominous record: The controversy began before Breyer announced his resignation, before anyone was nominated by President Biden. We seem to have reached the ultimate political stage of development, of no longer even needing a nominee for our confirmation fights.

The controversy over this nomination actually began roughly two years before the vacancy was announced. In March 2019, Biden said during a Democratic primary debate that he would only consider black females for the next Supreme Court vacancy. It was a promise elicited by Rep. James Clyburn (D-S.C.) during a break in the debate; Clyburn then gave Biden his critical endorsement before the key South Carolina primary. The judge Clyburn supports is now on Biden’s short list.

The pledge not to consider people based on their race and gender raised immediate concerns. This week, with Justice Breyer standing beside him, President Biden affirmed that he would exclude anyone who is not black or female. He would, in other words, not even consider Breyer himself, or even the late Justice Thurgood Marshall, because they are the wrong race or gender.

In making his pledge, Biden created a glaring contradiction for the court. He is using a threshold exclusion based on race and gender that the court has repeatedly declared either unconstitutional or unlawful for schools and businesses to use in their own admissions or hirings. There is a difference between a preferential and an exclusionary rule in selection. That contradiction will be magnified this term after the court accepted two cases that may further curtail — or even bar — the use of racial preferences in college admissions. Indeed, the new justice will hear arguments on the discriminatory use of such criteria after being initially selected not in a preferential rule, but an actual exclusionary rule based on race and gender.

In response to that observation, a host of commentators insisted that Presidents Reagan, Trump and George H.W. Bush made the same pledge. That is false. While seeking to appoint women and African Americans, none of the three excluded other races or genders from consideration, and they had diverse short lists. Notably, however, no commentators actually denied that Biden was using a test for admission to the court that the High Court itself would not allow for universities or businesses. Even if not unlawful, there is a legitimate question of whether a threshold test considered unconstitutional for schools should be used for the court that is tasked with barring such tests. 

After applauding Biden for excluding candidates on the basis of race and gender (including Asian Americans and Hawaiians), Sen. Mazie Hirono (D-Hawaii) went on MSNBC to emphasize one other important credential: a willingness to go beyond what the law says, in order to do what is right.

Hirono told MSNBC’s Ari Melber that she is looking for “someone who will consider the impact, the effects of whatever decision-making is on people in our country so that they are not making decisions just based on — which I would like them to base it on law, which would be nice, and precedent, and who are not eagerly trying to get rid of decades of precedent that would protect a woman’s right to choose, for example, and voting rights, et cetera. But I’d like a justice who also will take into consideration the real-life impact of the decisions he or she will be making.”

If you unravel that statement, you find a striking (and, frankly honest) statement that Hirono wants someone who will not be just another justice “making decisions just based on … law” but who “will take into consideration the real-life impact of the decisions he or she will be making.”

Hirono has often been criticized for inflammatory statements during confirmations, as well as her support for court-packing. During the Brett Kavanaugh confirmation, Hirono strongly implied — more than once — that the nominee was not entitled to a presumption of innocence and that men should “just shut up.”

While endlessly controversial, Hirono may be one of the more honest members of the Senate: Most of her colleagues adopt euphemistic or obscure terms to convey such notions without taking ownership of the real implications. Many, for example, embraced Justice Sonia Sotomayor’s statement that a “wise Latina” might very well reach a better conclusion in a case than a white man. Notably, that statement was made in opposition to the famous statement of Justice Sandra Day O’Connor that she did not view herself as a female jurist, that — on a legal issue — a wise old man and a wise old woman would reach the same conclusion.

There is no question that life experiences shape our perspectives and values. However, O’Connor was emphasizing that citizens rely on justices to rule on what the law means, not what they want the law to mean. If it is constitutional, what the law means should not depend on the “impacts” you favor or disfavor. The danger of identity politics shaping constitutional interpretations is precisely what O’Connor sought to rebut. The meaning of the Clean Air Act or the Commerce Clause should not depend on an individual justice’s life experiences. Likewise, the fact that a justice is a Jew, a Christian or an atheist should not shape their interpretation of the Constitution’s religion clauses.

Of course, the relevance of one’s life experiences depends greatly on one’s ideological bent. For example, while liberal lawmakers and many in the media celebrated the background of Justice Sotomayor as “inspiring,” they largely ignored the incredible life story of Clarence Thomas. While Sotomayor spent time in public housing with a single mother, Thomas grew up speaking Gullah, a Creole dialect, and his home was a one-room shack with dirt floors and no plumbing; he grew up without a father, who left him at age two. Thomas, the second African American to sit on the court, did not make the cut of “Great African Americans” featured by the Smithsonian’s African American Museum — but his accuser during his Senate confirmation hearing, Anita Hill, did.

The life experience of Justice Amy Coney Barrett also was not a positive factor in her confirmation. Ibram X. Kendi, an influential liberal race theorist, compared Barrett’s adoption of two Haitian children to being a “white colonizer” and suggested that she is using them as “props.” Hirono has been criticized for targeting judicial nominees’ deep Catholic beliefs and amplified her opposition to Barrett by voting “Hell, no” on the Senate floor. (Hirono is now calling on GOP colleagues to “keep an open mind” with Biden’s nominee.)

After the Kavanaugh bloodletting, this is not an auspicious beginning.

However, this nominee will not a transformative pick in terms of the likely outcomes of the court. Breyer will be replaced by a someone selected as a reliable vote on the left of the court; thus, the nominee will not change the court’s balance.

The question is whether this confirmation will change how future nominees are selected.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.