Ilya Shapiro has been writing and speaking on the Supreme Court for the Cato Institute (where he ran the Cato Supreme Court Review), the Federalist Society, various conservative publications, and mainstream outlets such as guest blogging at SCOTUSBlog for years. His recent book, Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court, is an excellent overview of the issue. The son of Russian-Jewish immigrants, he has, over time, developed an essentially universal reputation for scholarly rigor and good humor, even when he lost his recent campaign for the school board in Falls Church, Va. It seems almost protesting too much to observe that neither I nor anybody else who knows Ilya has ever seen or heard him be anything but fair and decent towards people of all races and genders.
He has, however, done two things the Left will not easily forgive. One, consistent with his distaste for the anti-Jewish quotas his parents faced in the Soviet Union, he was an early supporter of the lawsuit against Harvard’s race discrimination against Asian Americans, a suit that has now reached the Supreme Court and has defenders of race discrimination scrambling for any weapon to hand to defend their practices. Two, just a week ago, Georgetown Law announced that it was hiring him to be executive director and senior lecturer at the Georgetown Center for the Constitution. Academic perches of that nature are seen by left-wingers as their exclusive province, and whenever a conservative or even a right-leaning libertarian gets hired into one, they immediately set out to get them fired by any means necessary.
Joe Biden has, quite rightly, come in for criticism for announcing in advance during the 2020 campaign that his first Supreme Court nominee would be a black woman. The problem is not simply that Biden pledged to consider race or gender, or eventually make room for a black woman on the Court, but that he specifically said that for this job, his first criteria — sight unseen of who he would interview — would be to eliminate the great majority of the available candidates based solely on their race and gender. While presidents have had gender or state limitations in the past, this is a step further. Here was Ilya’s response to Biden’s explicit race-and-gender litmus test on Twitter:
Now, one may or may not agree that Sri Srinivasan would be the best possible candidate, but it is not an unreasonable point of view, and I do not doubt that it is a sincere one. Srinivasan certainly has a sparkling resume of the sort that Supreme Court nominees are regularly made of: he argued 25 Supreme Court cases as principal deputy solicitor general, lectured at Harvard Law School on Supreme Court and appellate advocacy, and has served on the D.C. Circuit for nine years. He is now the chief judge of that court, succeeding Merrick Garland. In 2016, we heard lots from liberals about how that job made Garland an ideal candidate. Nine years ago, Srinivasan was described by Jeffrey Toobin as Barack Obama’s “Supreme Court nominee in waiting,” and as Adam Serwer wrote at the time, “Srinivasan has more bipartisan legal muscle behind him than any other federal court nominee in recent memory. Legal elites of all political stripes consider him one of the best lawyers in the country.” Given that Srinivasan is also a member of an ethnic group and a religion (Hinduism) that have never been represented on the Court, it would seem imprudent for a Democratic president to rule him entirely out of consideration for no reason other than his race and gender. One would think that, in America, that sort of thing would be a fair criticism.
Moreover, we have already before us a daily reminder of the hazards of limiting your pool of applicants in this way. Biden also committed himself to a woman as his running mate. At the height of the George Floyd protests, he came under public pressure from Stacey Abrams, Al Sharpton, and Amy Klobuchar (who withdrew herself from consideration on this basis) to choose a black woman. Had he cast a wider net, he might still have picked a better running mate, but because there was only one black woman among the nation’s senators and governors, Biden chose Kamala Harris, who has been a disaster. At this writing, Donald Trump is at 43 percent approval with the public, Biden is at 41 percent, and Harris is at 37 percent. The fact that Harris is bad at her job has nothing to do with being a black woman; but the insistence on looking only at one race and gender for the job has a lot to do with how Biden ended up with a politically weaker vice president than he might otherwise have chosen.
Now, Ilya’s use of the words “lesser black woman” in this context was not the ideal way of phrasing this critique, but then, Twitter is fast-moving, space-constrained, and has no edit function, so it is hardly unusual to see things phrased there awkwardly (the tweets were written on his iPhone, and he has since deleted them). But this morning, Mark Joseph Stern of Slate decided to try to get Ilya fired from Georgetown by dishonestly portraying this as a “racist” rant and, for good measure, dismissing a writer of obviously superior intellect and credentials to Stern as a “troll” and casting his own eager assault as something he regretted having to do:
I hate to draw attention to this troll because attention is what he craves. But now that @GeorgetownLaw has hired him, I feel an obligation to condemn his overt and nauseating racism, which has been a matter of public record for some time. I am deeply ashamed of my alma mater. pic.twitter.com/OQaHPzZ8gK
— Mark Joseph Stern (@mjs_DC) January 27, 2022
Let’s be clear: Shapiro would have accused ANY Black woman nominee of having a “lesser” intellect—even if Biden had not announced his demographic criteria beforehand. That’s how he smeared Sotomayor, even though Obama never promised to nominate a Latina. https://t.co/cf7fNYdTRY pic.twitter.com/fA5t87anYJ
— Mark Joseph Stern (@mjs_DC) January 27, 2022
To Shapiro, the nomination of any woman of color is inherently suspect. He simply cannot see how such a candidate might have earned the position; he assumes she coasted, undeservedly, on affirmative action. And he doesn’t see how this belief is colored by his own racism.
— Mark Joseph Stern (@mjs_DC) January 27, 2022
No matter how qualified Biden’s Supreme Court nominee is, Shapiro will accuse her of being unqualified. Why? Because he cannot accept that a woman of color deserves to sit on SCOTUS. His assessment of nominees is contaminated by his own racism. He has made this painfully clear.
— Mark Joseph Stern (@mjs_DC) January 27, 2022
This is willfully dishonest, and it is done to explicitly target Ilya’s hiring by Georgetown, and Stern knows it. Most graphically dishonest is Stern’s claim that only racism can explain thinking that a non-white judge is better qualified, and that only a racist would object to excluding highly qualified people from a job interview process on the basis of race.
Academia being what it is, Stern got the head of Georgetown Law to issue a denunciatory statement:
Bill Treanor, dean of Georgetown University Law Center, sent a school-wide email condemning future GULC professor Ilya Shapiro’s racist tweets this morning. pic.twitter.com/OcD39ls8we
— Mark Joseph Stern (@mjs_DC) January 27, 2022
We should call all of this what it is: an immoral, dishonest, and scurrilous smear campaign. And this sort of thing will only intensify.