WINNING THE ELECTION, THEN LOSING THE PUBLIC.

During the Democratic nomination marathon of 2020, the current president might have secured the nomination by pledging to appoint a black woman to fill a Supreme Court vacancy.  That opportunity has now presented itself, and now the promise is freeing people to weigh in, and sometimes they invoke the specter of an affirmative action asterisk.  A Georgetown Law professor called Ilya Shapiro invoked the asterisk, and now he's in the middle of an academic cancellation squabble.  Outside the Beltway's James Joyner got off what in other weeks could be a Friday short take: "Outrage over the outrage is outrageous."  The elaboration would, in a saner time, be one of those "goes without saying" commonplaces.

The outrage here is a prestigious academic institution failing to stand up for intellectual freedom, not a couple of inartful tweets. A school condemning a highly accomplished professor and university leader for expressing an opinion well within his field of expertise is extremely problematic. And doing so in a way that implies he’s a bigot is simply beyond the pale.

At Minding the Campus, John "Discriminations" Rosenberg also went there.

The coming debate over this selection criterion is sure to be as entertaining as it will be heated. I look forward, for example, to hearing how those who believe the Court is a representative body will explain why nominating a black woman—a member of a group that makes up about 6.5% of the U.S. population—will make the Court look more like America than a Hispanic man, who represents about 9.5% of the population.

In any event, it appears virtually certain that the Court will soon be joined by a new Justice selected from candidates limited by race and sex, just as it is about to decide how much latitude universities have, if any, to use race in admissions. How odd, and how insulting to the new Justice, the only one on the Court who will always have an asterisk next to her nomination.

Those are the usual suspects.  Eugene Volokh questions the wisdom of the president limiting himself to less than seven percent of the population (and perhaps an even smaller percentage of the pool of potential justices) in that way.

I think it's also relevant here that the "objective" factors are really quite subjective. It's hard to accurately evaluate the quality of people's legal minds, and especially to predict their likely work product on a nine-member Supreme Court. That doesn't of course dispose of the question of whether we should consider identity factors; for instance, I don't think race, religion, or sex should play a role in ordinary government hiring or student admissions, even when qualifications are hard to measure and success is hard to predict. But if I'm right that for high-level positions considering identity factors is permissible, then it's hard for me to say confidently that considering those factors would yield a materially less qualified candidate, given that the qualifications are so hard to pin down.

Years ago, it might have been straightforward to put forth the Thurgood Marshall who argued Brown v. Board of Education, and I don't recall him ever being called a token.  In like manner, it might have been straightforward for the current president to identify somebody who had argued a key case, or had written rulings that conformed to Supreme Court guidance whilst applying the Constitution in a way Democrats like.  Or there are other ways to screen for the high bench.

Having the opportunity to serve the law at that level is a great accomplishment whatever the bases for the appointment; and the way to make it greater is simply to do more with it. Earl Warren, like him or not, is remembered as an especially important Chief Justice because of what he helped do on the Court, and no-one diminishes that on the grounds that he was appointed in part for political reasons stemming from the 1952 election.

Again, though, that's an intramural conversation among libertarians and conservatives.

What, though, do you make of this, dear reader?

Invoking an imaginary Black woman as his desired SCOTUS pick may have helped Biden achieve his short-term goal (though I have trouble imagining the person whose objections to Biden as a candidate were easily assuaged by the race and gender of an imaginary Supreme Court nominee). At any rate, he won the Democratic nomination and, eventually, the White House. But those abstract promises needlessly tokenized the actual women who would step into those roles, dooming them to racist and sexist skepticism before they even got the nod.

As a campaign tactic, it was not only selfish, but short-sighted. It gave Biden what may have felt like a boost in the moment, while creating a wide opening for criticism and doubts about the women who’d contribute to his presidential legacy.

That's from a Slate contributor, Christina Cauterucci, who might have missed that at the margin, it wasn't flipping Trump voters that the pledge was about, it was increasing turnout in neighborhoods where the Obama voters didn't vote for his anointed successor.

There's also this reference to a vice presidential pick that maybe didn't turn out so well.

Nobody understands this better than Kamala Harris. In the presidential debate after he promised to nominate a Black woman to the Supreme Court, Biden said he would choose a woman as his running mate. When he eventually tapped Harris, that gimmicky pledge dulled the announcement’s shine. She wasn’t a historic choice with a unique set of accomplishments and skills—she was the fulfillment of a campaign promise. Ever since, Harris has struggled to overcome the notion that her primary utility to the White House lies in her “lived experience” as a woman of color.

Does that lived experience include servicing prominent California politicians? Sorry.

Note, though, her conclusion.

If Biden had nominated a Black woman without his self-interested pledge, any presumption that she was chosen in large part for her gender and race could have been rightly written off as sexist and racist. Instead, such belittling presumptions are taking the spotlight because, according to the president himself, they are correct.

Put another way, an asterisk.

The pledge, though, worked in the nomination, and, I submit, during the election.

Joe Biden has been a political self-serving manipulator his entire career, particularly on matters of race. The promise to appoint a Black woman to the Supreme Court was just another Biden manipulation, making a promise he now portrays as high-minded but in fact was a trade for an endorsement.

Now, though, comes the reckoning with other voters, including the swing voters who didn't want institutionalized leftist incompetence as their government.  Here, the pledge becomes an unforced error.

Biden could have avoided this problem by simply appointing a black woman. No one would have questioned her appointment on that ground. He created the issue by announcing in advance that his search would be limited to black women. So why did he do something so seemingly foolish? Because, according to news reports, he had to make the pledge to obtain James Clyburn’s support in the 2020 presidential nomination race.

It is no wonder if voters conclude that Biden’s selection, whoever it turns out to be, is the result more of politics than of merit.

Bad politics, at that.

This packaging isn’t likely to fool anyone. It doesn’t obscure the fact that Biden has set aside a Supreme Court slot for a black female, thereby ruling out the vast majority of highly qualified candidates, including some Asian-American candidates whose credentials leap off the page (see below for one of them). This form of discrimination is unpopular.

How unpopular?

On the one hand, many people are losing faith in the Supreme Court because they believe that it’s now driven by political ideology. But when it comes to the topic of presidential nominations, a surprisingly large majority want the President to consider all of the best-qualified candidates rather than immediately winnowing the field to a small list of people based on nothing more than the color of their skin and the lack of a Y chromosome.

Such a nomination might be without controversy, if conditions were going well elsewhere.

There’s no good news for Biden on other issues in the poll. He’s underwater on just about everything. Despite boasts of strong 4th quarter 2021 economic growth, “only 1% of Americans view the state of the nation’s economy as ‘excellent,’ and only 23% say it’s ‘good.’ Three out of four Americans said the state of the economy was ‘not so good / poor.'”

Voters can't trim the institutionalized leftist incompetence until the next election. They're likely to view such a blatantly political judicial appointment as more of the same ration.