AMAC Exclusive – By Daniel Roman
The scale of the fiasco is astounding. From the leaked process by which a new vacancy on the Supreme Court was announced – in which Justice Breyer was denied the chance to retire on his own terms – to the way in which a campaign promise Biden made to nominate an African American woman to the Court has transformed into a rigid and fixed quota, nothing has gone right for Biden and the Democrats when it comes to the upcoming vacancy on the Supreme Court.
To be sure, the Biden administration has not built a reputation for competence over the course of its 12 months in office. Nor has the Democratic Party fared much better when it comes to the politics of Supreme Court nominations in recent years. Arguably, the Garland, Gorsuch, Kavanaugh, and Barrett nominations all went badly for Democrats, and even the one rough patch the GOP ran into when it came to nominees, that of Harriet Miers in 2006, probably ended as a net loss for Democrats. They politically embarrassed George W. Bush, but humiliation was a daily occurrence for the 43rd President by that point in his administration, and conservatives ended up with the lifetime appointment of Justice Samuel Alito. Hence, there was no reason to think that the process of replacing Justice Breyer would be well-managed or easy, as the media assumed. Or, for that matter, that the Biden administration would not do everything in its power to screw it up.
But nobody could have imagined such a disaster as we are already seeing. The only person associated with this process who looks in any way dignified is Justice Breyer himself. Breyer’s concern that his departure would appear political if it took place under pressure has been borne out by events. Breyer clearly wished to retire on his own terms. He wanted to set the public narrative before retiring from the stage and allowing a free for all to take over.
A hint of why lies in the speech he gave Thursday, whose themes, while liberal, represented a version of liberalism far removed from the progressive worldview that now predominates among left-wing circles.
Breyer talked of teaching his grandchildren the timeless words of the Gettysburg Address: “four score and seven years ago our fathers created here a new country, a country that was dedicated to liberty and the proposition that all men are created equal.” He invoked George Washington and Abraham Lincoln, the first now denounced by many progressives as a slaveholder, the latter as a racist.
It was a good look for Breyer. It was also clear that no one, especially on the Left, for whose causes Breyer did so much, was listening. For them, Breyer’s retirement was entirely a political event. At best, his continued presence was an obstacle to getting “another vote” on the bench, reducing Breyer to nothing more than a placeholder until a younger, more liberal justice could take his place. At worst, he was seen as a “selfish old white male” standing in the way of a black female who would function as the instrument and judicial arm of the progressive left.
It is hard to think of anything less compatible with Breyer’s version of liberalism than the spectacle of a Georgetown faculty member being forced to apologize in a desperate effort to keep his job after suggesting that excluding 95% of the population and candidate pool on account of race and gender might be unfair or a poor way to select a nominee.
But that is precisely what happened to Ilya Shapiro after he posted a tweet saying that “objectively best pick for Biden is Sri Srinivasan, who is solid [progressive] and [very] smart. Shapiro went on to say that Srinivasan “even has identity politics benefit of being first Asian (Indian) American. But alas doesn’t fit into last intersectionality hierarchy so we’ll get lesser black woman. Thank heaven for small favors?”
Shapiro tweeted a sentiment that an astounding 76% of Americans share. It’s hard for 76% of Americans to agree on anything, even that puppies are cute. Yet 76% believe that “all candidates regardless of background” should be considered to succeed Justice Breyer. Somehow, Biden and Democrats are on the wrong side of such a straightforward belief, and are now embroiled in a controversy over efforts to “cancel” an academic for expressing what three quarters of Americans think.
Biden shares much of the blame. Having had almost two years to consider how to follow through on his promise without de-legitimizing the serious process of selecting a Supreme Court nominee, Biden seems to have given little thought to an actual person. It was only thanks to Donald Trump’s extensive foresight and preparation that he was able to nominate and confirm Amy Coney Barrett with such short notice in 2020. By contrast, Biden, despite having artificially restricted the candidate pool to the single-digits, appears not to have settled on a single candidate. Had he done so, he could have rushed the announcement and thereby presented the pick as so distinguished by her qualifications that there was no need for a search confined by gender or race. Biden could have claimed that he always had in mind a particular individual, and because that individual just so happens to be black and female, he was able to fulfill his promise.
But Biden missed his chance. Given where America is in 2022, with fights over COVID-induced school closings having shifted the battle lines in American politics from race to class and education, a decision to fight on identity politics in its pre-COVID form was always likely to fail. America is not the same country it was in February 2020 when Biden made his promise. No better evidence exists of that than Donald Trump’s success with nonwhite voters the following November. A failure to heed that lesson and recognize how the world changed is responsible for many of Biden’s difficulties, not just this one.
The crudeness on display, both in promoting whatever Biden is doing with the process of selecting a Supreme Court nominee, and in assaulting dissenters like Shapiro, is proof that even after Glenn Youngkin’s victory in Virginia and Build Back Better’s loss in the Senate (with the filibuster intact), today’s Democrats — like the French Bourbons – have both learned nothing and forgotten nothing. Democrats would be wise to recall that the French Bourbons were brought back to power in 1815, not by their own efforts but by external events. COVID did for Biden what the Duke of Wellington’s armies did for Louis XVIII. Rather than understanding that they had not triumphed, but rather that opponents had been swept away, the Bourbons proceeded to behave as if they had a mandate only to find themselves chased out by another Revolution in 1830.
Democrats seem determined to repeat the Bourbon experiment today. By ascribing their victory in 2020 not to COVID or other external events, but rather to decisions and issues which in fact would have ensured their defeat again had it not been for external factors – BLM, identity politics, vicious attacks on social dissenters in the name of “cancel culture” – Democrats are inviting their own downfall.
Breyer saw all of this coming. And so far the process to replace him has vindicated all of his fears. Breyer, as noted, was attacked for his concerns that his retirement would be seen as political and his fears about the dignity of the process. But Justice Breyer was always the most observant of the court’s liberals. While Ruth Bader Ginsburg spoke to and for “Blue America,” Justice Breyer spoke to America at large on behalf of “Blue America.” Sadly, Breyer is one of the last liberals who understand the difference.
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.