Lindsey Graham: Choosing a black woman for the Court isn’t “affirmative action”

Graham has changed in many ways since he was known as John McCain’s sidekick rather than Donald Trump’s but he’s been consistent on two matters dear to his heart. He’s still among the staunchest hawks in the Senate. And he’s never more conciliatory towards the other party than he is on the subject of Supreme Court nominees, whom he believes should be confirmed based on qualification rather than ideology. If a Democratic president nominates a well-qualified liberal, that liberal will get Graham’s vote.

Case in point: This morning on “Face the Nation” he lavished compliments on Judge Michelle Childs of his home state of South Carolina. Childs is African-American and a dark-horse contender to be Biden’s SCOTUS pick thanks to an aggressive lobbying effort by James Clyburn. Do you agree with some in your party that Biden is practicing affirmative action by insisting on a black woman as nominee, Margaret Brennan asked Graham?

He does not. I think he’s right.

There are two components to affirmative action to which people rightly object: Discrimination based on race and awarding opportunities to less qualified candidates instead of more qualified ones. The second component is missing here, Graham correctly notes. Biden’s not going to pull some 1L out of law school somewhere and put her on the Court in the name of diversity. He’s choosing among eminently qualified black women judges. There’s no reason to think his pick will perform any worse than a white male liberal like Stephen Breyer.

Biden is practicing discrimination by limiting his choice to black candidates and it’s jarring to see a sitting president do so overtly. But Graham also has a point when he says that’s not meaningfully different from Reagan pledging to put a woman on the Court, another case of a president summarily eliminating an enormous number of qualified contenders based on a biological characteristic. Susan Collins was asked about the Reagan comparison this morning and drew a distinction without a difference:

To her, it matters that candidate Reagan pledged that a woman would be one of his first picks for the Court whereas candidate Biden pledged (or at least strongly implied) that a black woman would be his first pick. But … why does that matter? Whether Sandra Day O’Connor ended up being chosen for the first vacancy during Reagan’s presidency or the second, he would have been practicing gender discrimination by insisting on a woman.

And of course, O’Connor was Reagan’s first pick, not his second, for good reason: A president never knows how many vacancies he’ll get to fill. It mustn’t have been lost on Reagan that his predecessor, Jimmy Carter, served four years without getting an opportunity to fill a SCOTUS seat. If Reagan wanted to be sure to keep his pledge, he’d have to nominate a woman as soon as he got the chance. So he did. Now Biden’s doing the same thing, based on the same logic.

This whole debate begins to feel absurd when we realize there’d be no controversy if Biden had instead said on the campaign trail, “I pledge to strongly, strongly consider a black woman for my first Supreme Court appointment” and then winked dramatically to emphasize the point. Presidents routinely weigh identity politics and diversity in choosing SCOTUS nominees, in some cases even when selecting a white male. Given how important black and women voters were to his 2020 victory, it’s a cinch that Biden would have made history by appointing the first black woman justice even if he hadn’t promised to do so. All we’re really arguing about is whether he should have maintained the polite fiction that contenders aren’t ruled out for identity-based reasons and practiced covert rather than overt discrimination, as every president prior to the civil rights era did in declining to put an African-American on the Court.

All of that said, overt racial discrimination is baaaaad politics. Stay tuned for Jazz’s post about this brutal new ABC poll later this afternoon.

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