By declaring that he will only consider black women to fill the vacancy Justice Breyer will soon leave on the Supreme Court, President Biden has pre-emptively destroyed the credibility of whomever he nominates. And there is only one way for that unfortunate beneficiary to reclaim it: she must decline the nomination.
Biden’s nominee will always know that she obtained her high office by virtue of her immutable characteristics. All of her talent and hard work, though it assuredly got her far in her field, will forever be overshadowed by the fact that she was elevated to the pinnacle of her career and field because she is a black woman. And she will know that everyone around the world knows it, too, and her competency will always be in doubt because of it. Her prejudiced appointment will also invite scrutiny of her past record: did she get all of her prior positions by leveraging her physical characteristics? For the rest of her career — every decision she makes, every opinion she writes, every case on which she rules — there will always be an asterisk next to her name.
Sure, her name will be in the history books. But every entry will begin, “Supreme Court Justice Asterisk, who was appointed to the bench because she was a black woman, …”
Nor will it be only Justice Asterisk’s competency and worthiness that will always be questioned; her legal rulings will be forever tainted. This is because, in the United States of America, it’s illegal to discriminate against applicants for a job because of their race or gender. Title VII of the Civil Rights Act of 1964 makes this very clear:
It shall be an unlawful employment practice for an employer … to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
The black female who accepts a job for which the hiring manager has announced to the world that he is breaking the law by hiring her demonstrates that she does not respect the rule of law. She also reveals that she is incapable of discerning right from wrong. By accepting Biden’s partisan, racist, sexist favoritism, she disqualifies herself for the very position for which she is nominated.
Americans will never accept Justice Asterisk’s rulings if she is nominated and confirmed. A recent ABC News/Ipsos poll finds that Americans want the president to consider all possible, qualified nominees rather than only black women by a ratio of more than three-to-one (76% to 23%). Biden will do more to discredit and destroy faith in the court by making a racist, sexist nomination than anyone has done in generations. And by accepting the position, Justice Asterisk will become an accessory to his destruction of American institutions.
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The saddest part of all is that any black woman Biden nominates to replace Breyer is destroyed by his nomination. Even if Nominee Asterisk is objectively, truly the very best, most qualified, most competent, and most appropriate selection in the entire country, she loses her claim to that achievement because of Biden’s incriminating, patronizing pre-announced criteria. Even if this woman truly earned her way to a seat on the bench of the highest court in the land by her own worthiness, her triumph would be indelibly tainted by Biden’s repugnant racial and gendered preconditions. He behaves as though a seat on the bench is not something a black woman can earn but is his to bestow upon her. By the very act of “giving” Justice Asterisk the honor of becoming a Supreme Court justice, Biden will have stolen that honor from her forever.
She should say no.