Let’s just cut to the chase. It comes down to this: which Black woman jurist will be acceptable to Sen. Joe Manchin?
That’s really all that matters now that Justice Stephen Breyer has announced his retirement. Pres. Joe Biden has locked himself into selecting a Black woman, but he still needs all 50 Democrats, including Manchin, to get his nominee approved. There’s little chance any Republican will vote for anyone Biden sends them and, even if they did, that person would almost certainly be someone that is acceptable to Manchin as well.
My personal front-runner is Judge J. Michele Childs. I like her for three reasons: Rep. Jim Clyburn likes her and I have a world of respect for Clyburn; she has a working class background; and she did not go to an Ivy League law school. That last point is especially important. Until Amy Coney Barrett joined the court it was pretty much evenly split between Harvard and Yale lawyers. That narrowness of experience is not a good thing. Barrett went to Notre Dame and Childs went to law school at the University of South Carolina.
“One of the things we have to be very, very careful of as Democrats is being painted with that elitist brush,” Rep. Clyburn said last year when he talked openly about how he was pushing Childs for the court.
“When people talk to diversity they are always looking at race and ethnicity — I look beyond that to diversity of experience,” Clyburn added.
Exactly right. And that’s exactly the kind of argument that might appeal to Manchin.
Look, I thought Biden made a mistake when he hemmed himself in by saying he would only consider appointing a Black woman. It seems to me he should have been focussed on appointing the most qualified person with the best chance of getting confirmed rather than on that person’s gender and skin color. But diversity of background does matter and so, to the extent that being a Black woman is part of that diversity, it makes sense to include that among the considerations. I just wish Biden had given himself more room to maneuver. And now, instead of getting much credit for making an historic choice, he’ll just be seen as making good on a campaign promise to an important constituency. What might have been seen as a noble advance can now be interpreted as just another transactional political payoff.
But he said what he said and so here we are. It just reflects where the Democratic Party has gone in the last few years, and now Biden has to work within the constraints he and his party have set for themselves: a Black woman who can get Joe Manchin’s vote. Simple as that.
Finally — and I hesitate to even mention this — but what if there is no Black female nominee moderate enough to gain Manchin’s support? Then what? If you thought the voting rights and Build Back Better fights were disastrous for the Democrats, well, those were just walks in the park.
And a postscript: Be careful what you wish for. Assuming they can get Manchin on board, the Democrats will be able to approve Biden’s nominee on a party line vote. That’s because Mitch McConnell did away with the filibuster for Supreme Court nominees when it benefited Republicans. That’s something that should make Democrats feel better about their failed attempts to eliminate the filibuster for legislation. They may find it comes in handy the next time Republicans are running everything again.
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