Can Biden Constitutionally Restrict His Nomination...
Jan 28, 2022 16:44:04 GMT -5
Post by schwartzie on Jan 28, 2022 16:44:04 GMT -5
Can the President Constitutionally Restrict His Nomination to a Black Woman?
by Alan M. Dershowitz • January 28, 2022 at 3:00 pm
Supporters of President Biden's announcement will argue that there is a big difference between prohibiting a person from serving based on religion, race or gender, and affirmatively giving preference based on these criteria. That is sophistry. By limiting his choice to a Black woman, President Biden has disqualified every non-Black woman and man in America. There are a considerable number of highly qualified Black women, and I would applaud the nomination of any one of them. But that is not the issue. The issue is exclusion.
The Supreme Court has a long history of exclusion.... The Supreme Court was [for many years] an institution reserved primarily for white Protestant males. That was wrong and unconstitutional. But two wrongs, even if one of them is a "good" wrong, do not make a constitutional right.
The Black woman who is eventually nominated for the job will suffer reputationally from the president's announcement. She will not be regarded as the most qualified person to be nominated, but only as the most qualified Black woman. That is insulting, even if not intended to be.
President Biden should direct Attorney General Garland to prepare a list of the 25 most qualified nominees. No one should be excluded on the basis of race or gender. Such a list, if fairly compiled would include several Black women. (It should not include Kamala Harris, because she might have to cast a tie-breaking vote on herself!)
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by Alan M. Dershowitz • January 28, 2022 at 3:00 pm
Supporters of President Biden's announcement will argue that there is a big difference between prohibiting a person from serving based on religion, race or gender, and affirmatively giving preference based on these criteria. That is sophistry. By limiting his choice to a Black woman, President Biden has disqualified every non-Black woman and man in America. There are a considerable number of highly qualified Black women, and I would applaud the nomination of any one of them. But that is not the issue. The issue is exclusion.
The Supreme Court has a long history of exclusion.... The Supreme Court was [for many years] an institution reserved primarily for white Protestant males. That was wrong and unconstitutional. But two wrongs, even if one of them is a "good" wrong, do not make a constitutional right.
The Black woman who is eventually nominated for the job will suffer reputationally from the president's announcement. She will not be regarded as the most qualified person to be nominated, but only as the most qualified Black woman. That is insulting, even if not intended to be.
President Biden should direct Attorney General Garland to prepare a list of the 25 most qualified nominees. No one should be excluded on the basis of race or gender. Such a list, if fairly compiled would include several Black women. (It should not include Kamala Harris, because she might have to cast a tie-breaking vote on herself!)
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