Biden’s Unconstitutional Supreme Court Nomination

News: Commentary
by David Gordon  •  •  February 4, 2022   

White males need not apply

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Joe Biden's now-infamous pledge to nominate a Black woman to the Supreme Court is about as constitutionally sound as ol' "Geriatric Joe" is lucid — that's to say, not at all. So not only should the president's eventual nominee be arm-twisted and shamed into apologizing for benefiting from actual systemic racism and sexism, she should be expeditiously disqualified from the confirmation process by some principled federal judge. Because "them's the rules," so I'm told. 

And it's high time we force the Left to play by the same rule book as everyone else. If we on the Right are not allowed to announce on national TV that only White males need apply for a pending job, then it should be reckoned absolutely beyond the pale for a sitting president of the United States to snub umpteen SCOTUS-feeder-court judges with sterling resumes, all because they're the wrong color or are saddled with the politically incorrect chromosome. But, embracing their eventual demise, conservatives are doing absolutely nothing to advance the cause of political parity.

So before proceeding to outline the legal grounds for rubbishing Biden's forthcoming affirmative action (read: underqualified) nominee, let me pause for a moment so that White males can sneer at the craven indifference of the Right to the bald-faced reverse apartheid being ushered in by the New Left.

Progressive agitators have spent the last two years running roughshod over the entire American system of law and order and burning down large swaths of their own cesspool cities in a collective tantrum because a policeman may have used excessive force while apprehending a dangerous stoned felon who just happened to be Black. Meanwhile, comfortable conservatives can hardly be bothered to lift a finger to register their disapproval for manifest anti-Caucasian, misandrist discrimination. Perhaps if suburbanites get "steamed" enough watching the hostesses of Outnumbered provide lilting pop-criticism of just how unfair Joe Biden is, they'll write a strongly worded letter. Maybe. Don't hold your breath.

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Most right-wingers are so demoralized, having been groomed by the Left for decades to tolerate self-serving rule changes and schizophrenic double standards, that they're too scared or indifferent to raise hell for redress. It's somewhat of a millennial meme that castrated conservatives actually think that by merely pointing out the Left's obnoxious hypocrisy, they're achieving some sort of moral victory — as if being able to diagnose the cancer eating away at your organs is akin to a cure. Hardly.

Unless conservatives hasten to ditch their political battered-woman syndrome, the Western world is sunk. If, by some miracle on par with the loaves and fishes, the unprincipled masses do simultaneously rouse from their Netflix-and-gluten-free-comfort-food-filled torpor, we're still probably pwned, but at least we have an outside chance for a turning of the tides, a wing and a prayer.

Unless conservatives hasten to ditch their political battered-woman syndrome, the Western world is sunk.

But since we can't count on our compromised hedonist neighbors to bail us out through the political process, i.e., taking to the ballot box to run the gaggle of White-male haters out of office, we have to take our fight to court — because that is where we can actually still prevail in a meaningful way. While it's true that many judges fancy themselves unelected superlegislators, there remains an air of salutary sanctimony in the judicial system, and along with it, a whisper of a memory that Lady Justice is, in fact, blind and that the law must impartially bind weak and strong, White and Black, Republican and Democrat. 

Justice Stephen Breyer

Under our current framework of hyperegalitarian constitutional jurisprudence, it's virtually self-evident that Biden's pledge to fill outgoing justice Stephen Breyer's seat on the bench with a Black woman won't pass legal muster. The U.S. Supreme Court has held that per the Due Process Clause of the Fifth Amendment, the mandate of equal protection — the idea that the State must treat similarly situated individuals equally under the law — applies to the federal government as well as the states.

Indeed, in Bolling v. Sharpe, 347 U.S. 497 (1954), the Supremes held that race-based discrimination is "so unjustifiable as to be violative of due process" and that the same Constitution that mandates the states honor equal protection couldn't possibly "impose a lesser duty on the federal government." The absorption of equal protection by the Fifth Amendment has come to be known as "reverse incorporation," and, needless to say, this doctrine is quite salient to a presidential administration intent on favoring the noble minority over the White male untouchable — the figurehead for what Antonio Gramsci disciples would dub the 21st-century bourgeoisie.

Justice Lewis Powell

More recently, the Court has had occasion to scrutinize, through an equal protection lens, racial quotas like Biden's. In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the Supremes analyzed a University of California, Davis, Medical School "special admissions" program that set aside 16 out of 100 seats in incoming cohorts for minority students. On its way to concluding that the UC Davis admissions policy had impermissibly made race into a sine qua non in violation of the Equal Protection Clause of the 14th Amendment, the Court underscored, in an opinion penned by Justice Lewis Powell, that "when a classification denies an individual opportunities or benefits enjoyed by others solely because of his race or ethnic background, it must be regarded as suspect" and that making "distinctions between citizens solely because of their ancestry" is "odious to a free people whose institutions are founded upon the doctrine of equality." 

Biden's pledge to confine his first (and hopefully only) Supreme Court nominee search to the wafer-thin ranks of Black woman jurists reeks indelibly of the sort of invidious discrimination about which the Court fulminated in Bakke. Except, by hybridizing his racism with a desperate, virtue-signaling sexism, Biden has managed to one-up the "innocuous" racism of bygone days — back when critical theory and cultural Marxism were still in their relative infancy and not every political appointment and elected official needed the feather in his cap of being the first representative of some obscure, ostensibly marginalized "intersectional" class to occupy whatever position. (By the by, does even the most brainwashed left-winger actually care if a Muslim South American intersex lesbian furry takes "xir" place as mayor of Bangor, Maine, in a "historic first," or does everyone just acknowledge pretending to celebrate these sideshows is just shamelessly cynical political posturing?)

In making no bones about his discriminatory intentions — indeed, in publicly boasting of them to his entitled, woke base — Biden has all but guaranteed that he will lose in court should someone bring suit challenging his forthcoming nomination. We just need some jilted plausible candidate for the Supreme Court, perhaps a high-ranking attorney or judge somewhere, to have the fortitude to file the paperwork.

'Black woman–gate' is decidedly hateful to America's Constitution.

"Black woman–gate" is decidedly hateful to America's Constitution, the supreme law of the land. So let's take this fight to court, because that's where we're sure to win. In fact, judging by the prevailing political winds and the complacency of our neighbors, the courts may be the only places we can still win.

David Gordon holds university degrees in political science, law and theology. He is co-author of Rules for Retrogrades: Forty Tactics to Defeat the Radical Left. Gordon is a writer, book editor and associate copy editor at Church Militant.
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