Biden’s Blunder May Cost Him a Supreme Court Seat

AMAC Exclusive – By Daniel Roman

Joe Biden’s decision to run a search process for his Supreme Court pick that excludes 95% of Americans – a process that would exclude consideration of Thurgood Marshall, Ruth Bader Ginsberg, Stephen Breyer, and Barack Obama – is a colossal mistake. It is a mistake that will not only cost Joe Biden politically but, if Biden is not careful, may make it impossible to fill Breyer’s Supreme Court seat altogether.

The simple fact is that the process by which Biden has undertaken to select a replacement for Justice Stephen Breyer is an affront to everything America stands for. For that matter, it’s an affront to what Breyer stands for, as highlighted in his retirement speech, a paean to American greatness with invocations of George Washington and Abraham Lincoln.

The core of Biden’s mistake is not that he promised to appoint an African American woman to the court, or even the judgment he recently made to follow through on his promise. In hindsight, Biden might have avoided making that specific commitment and still won South Carolina and the nomination. Bernie Sanders’ threat looks far less formidable today than it did at the time, and the prospect of Pete Buttigieg as a viable candidate for president in 2020 now seems almost laughable. But with the state of Biden’s campaign and the role James Clyburn played in its revival, the promise was a justifiable, if excessive, part of a successful strategy. Having made the pledge, refusing to honor it would have caused charges of betrayal and controversy among an already fractured Democratic Party.

There were, however, ways of fulfilling the campaign promise which would not have immediately undermined the candidacy of whichever candidate Biden ultimately selected. If Biden had just immediately moved forward with announcing a nominee—someone, anyone—and they “happened” to be female and African American, the focus would all be on their qualifications and background, not the “horse race” for the selection. He could have said easily he had long had the nominee in mind because they were clearly the most outstanding pick.

Yet Biden has not simply moved forward with a nomination. Instead, he has initiated a charade of a search which excludes anyone who is not black and female – thus placing all the attention squarely on the race and gender of his potential picks, making clear that his fundamental criteria are neither qualifications nor even judicial philosophy, but identity.

It is the very essence of this exceedingly narrow “search” to pick a new Supreme Court justice that is Biden’s first and greatest mistake. This public and protracted “search,” not the pledge to appoint an African American woman, has trapped him. Now he must defend a process which, by definition, suggests that while qualifications are important, they are less important than race or gender. 76% of Americans disagree with this approach and say they believe that “all candidates regardless of background” should be considered to succeed Justice Breyer. Of course, they do; most Americans are good people who believe things like equal opportunity matter. Biden placing himself on the wrong side of such a question is a blunder of shocking proportions. Indeed, no president has ever been so foolish as to handle a Supreme Court nomination in this way.

Dangerously for Biden and the Democrats, they have now maneuvered themselves into a situation where things can quite easily get worse. Democrats’ Senate majority depends on the tiebreaking vote of Vice President Harris. That means a single Democratic defection would doom any nomination, assuming Republicans are united in opposition. Biden and Schumer should have learned something from their experiences with Kyrsten Sinema and Joe Manchin. While both have been generally reliable votes on judicial nominations, Sinema in particular clearly values the independent, maverick, bipartisan image she has cultivated. Her political future arguably depends on maintaining it after her break with Democrats on elections and the Build Back Better social spending bill.

While Sinema largely would have received a pass on confirming a Biden pick – Sinema is, after all, pro-choice, and Biden is replacing a liberal – the quota-based process is exactly the sort of thing Sinema has established a reputation for opposing. The longer the controversy persists, the greater the political cost of Sinema voting to confirm, especially if there are no Republicans voting Yes to provide cover. While Lindsey Graham, Mitt Romney, and Lisa Murkowski likely would have backed a Biden nominee regardless of ideology, they too could find themselves hard-pressed to legitimize this process. Their support for Biden’s nominees was a vote for the “process” and “institution,” but this process makes a mockery of both.

What if Biden loses Sinema’s vote? He would have a real problem. For one thing, not only would it doom this specific nominee, but if Sinema objected not to the nominee but to the process, then any other African American woman Biden nominated would now look like a product of the same process. Yet if Biden backed down and nominated someone other than an African American woman, he would be seen as betraying his base, his promise, and the African American community. In such a circumstance, it seems likely that the only recourse open to Biden would be either to plead with Sinema, or for protestors to try and threaten her, both of which failed to force Sinema to support Democrats’ push to abolish the filibuster. There is a real chance that neither Sinema nor Biden could back down. The former because to do so would be to lose all of the moderate and conservative crossover credibility she won over the last year, the latter because it would look like throwing his “base” under the bus yet again under pressure from “Sinemanchin.”

In short, Biden has screwed up every aspect of the Supreme Court nomination process. He mismanaged Breyer’s retirement announcement, humiliating the Justice, while also handling his “promise” regarding a replacement in the worst way possible. Rather than pursuing plausible deniability, by preselecting a nominee who met his criteria and eliminating the need for this unseemly search process, he is running what he claims is a merit-based search, while strictly limiting the search to an exceedingly narrow combination of race and gender in a fashion most Americans find offensive. He is placing the future of his nominee and Breyer’s seat in the hands of Sinema and a few Republicans, while doing everything possible to make it difficult to support him.

Daniel Roman is the pen name of a frequent commentator and lecturer on foreign policy and political affairs, both nationally and internationally. He holds a Ph.D. in International Relations from the London School of Economics.