Republicans Try to Create Biden's Lani Guinier Moment

The vicious, and completely unnecessary "All Lives Matter-ing" of adding a Black woman to the Supreme Court

Publisher’s Riff

Politically, President Biden and Senate Democrats have no choice: fail to nominate and confirm a Black woman to the Supreme Court and they will go from all-but-certain to very certain to lose the 2022 elections. Bad enough there are growing ranks of voting eligible untapped Black non-voters who have, for reasons rational and irrational, pretty much dismissed the Democratic Party as viable, but there are now growing numbers of Black voters who feel the same way, particularly older Black voters, as the latest HIT Strategies BlackTrack poll shows …

Hence, Biden and Democrats will, as we’ve already said, need a very energetic combination of three bold moves working in harmonious concert with one another: 1) the nomination and confirmation of a Black woman Supreme Court justice; 2) the cancellation of student loan debt and 3) the immediate activation of a “needs-based” voter mobilization or “GOTV” effort. These three core efforts are the only conceivable way for Democrats to potentially restore Black voter trust in their ability to meet community demands and needs. It can all start with the confirmation of a Black woman Supreme Court justice to kick off renewed 2022 electoral hopes.

NeoConfederates (posing as “Republicans”) are none too pleased by the prospect of a Black woman being so easily seated to the Supreme Court, since their hatred for this demographic is very real. Black women, rather happily, do not vote for Republicans and the GOP, in turn, hates them for it - one among a great number of reasons racists normally despise Black women. But, since Senate Republicans have no filibuster or other procedural tools at their disposal to, technically, block Biden’s impending Black woman SCOTUS nomination, they do posess the gift of public pressure.

Already, as Republicans tell it, “there’s no rush” to nominate and confirm someone … conveniently forgetting or, simply, just knowing that most Americans forget they nominated and confirmed the last seated Supreme Court justice Amy Coney Barrett (a White woman) within a month in 2020. That’s an attempt to cast doubt on the Democrats’ ability to manage a Senate confirmation process.

But, in a bolder move, Republicans and their conservative ecosystem are giving the Black woman SCOTUS prospect an “All Lives Matter” treatment. Why just a Black woman? We should look at “all possible and qualified nominees,” they say, as if the Supreme Court nomination process has always been non-partisan, non-political and non-White. They present this as if, in the Supreme Court’s entire 233 year existence, it’s always been this bastion of diversity and inclusion. As Washington Post’s Paul Waldman points out …

One hundred and fifteen Americans have sat on the Supreme Court. Of those, 110 have been men and 112 have been White. But now that President Biden has the chance to follow through on the promise he made to appoint a Black woman to serve on the court, conservatives are aghast at the very thought.

The Supreme Court’s is one of the most White male-dominated institutions we know. Only two of those 115 - or 1.7 percent of all U.S. Supreme Court justices - were Black men (one who currently sits on the High Court whom Black people question is even “Black,” but that’s another discussion). The lack of a Black woman is glaring. And, largely speaking, while White men are just 30 percent of the overall U.S. population, they represent the vast majority of the federal judiciary, according to the Center for American Progress …

That rather obtrusive line of data has, apparently, either not been shared with Republicans or they don’t care. Most will, on brand, continue to push forward with the argument that Biden’s pledge to nominate a Black woman (which is, really, no different from Candidate Reagan’s 1980 campaign pledge to pick a woman for the Supreme Court) is merely “affirmative action,” as Washington Post’s Jamie Downie notes …

But many Republicans and conservatives have been far less subtle with their attacks, focused on Biden’s 2020 pledge to nominate a Black woman to the Supreme Court. Former United Nations ambassador Nikki Haley tweeted, “Would be nice if Pres Biden chose a Supreme Court nominee who was best qualified without a race/gender litmus test.” The Wall Street Journal editorial board claimed Biden’s promise “elevates skin color over qualifications.” And Sen. Roger Wicker (R-Miss.) said the eventual nominee will be the “beneficiary” of “affirmative racial discrimination.”

The problem here is that the Supreme Court nomination process, supremely dominated by White men and White people has always been a “race/gender litmus test.” It’s also an institution that has, for nearly 235 years, been run using an “affirmative action” formula … for White men. What’s changed here is that an institution that has been almost exclusively (with the exception of several instances) reserved for White men is now being told it must, this one time, allow the bending of its well-preserved archaic country club rules. White people … no, white nationalists and their supporting cast … are going apoplectic over the thought.

Still, that’s not going to stop Confederates from doing everything in their rhetorical and media power to undermine Biden’s plan to pick a Black woman nominee. Some of this will be repeated plays from the 1993 Senate confirmation battle over President Clinton’s nomination of Black law professor Lani Guinier to head the Civil Rights Division of the Justice Department. It will be important for everyone, particularly Democrats, to refresh on that battle as a precursor to this one 29 years later. Clinton, buckling under enormous pressure from Confederate political forces who slandered Guinier, eventually withdrew her nomination without giving her any chance to testify before the Senate. Guinier passed away earlier this month at the age of 71.

Republicans are already dusting off that 1993 playbook. And, predictably, corporate media outlets are obliging. Politico magazine is already wagging it’s tail at the dog whistle with a feature on the Guinier non-confirmation battle just days after Biden confirmed he’d be following through with his campaign pledge. The telegraphing, between the wake of Guinier’s transition and now what’s turned into an unnecessarily ugly battle over a still unknown Black woman nomination, is ominous, as Richard Harris writes ….

Since the failed nomination of Robert Bork to the Supreme Court, Washington has seen its share of ugly partisan confirmation battles. But Guinier never reached the hot seat in hers. She suffered from something different: benign neglect from the White House that nominated her. The Clinton administration didn’t anticipate that her enemies would define her so effectively from the get-go and never launched a full-on counteroffensive to neutralize that narrative. Perhaps her academic writings were ahead of their time. Or perhaps she was simply a victim of a new administration not yet schooled in the art of whack-a-mole or knowing how to tamp down multiple crises as each pops up.

Now the public conversation is shifting already, flinty and venomous at the possibility of a Black woman being nominated - at least that’s what Republicans are saying, and that’s what ABC News/Ipsos has convinced a small population sample of Americans who took their recent poll …

The pollsters and the respondents both assume Americans are experts on the Supreme Court and its history when clearly they are not: Most Americans can’t even name a Supreme Court justice, as a 2018 C-SPAN survey illustrated, and most don’t know the role of the Court in relation to the president, as the Annenberg Center recently showed. So,exactly how would this public know how to nominate the best person for a vacancy? And, since when did we assume this was always a non-ideological or non-political process?

Polls such as these are disingenuous and messy. They are also designed to put enough pressure on not only the president, but on Senate Democrats. The goal is to create the theatre of several “moderate” or “red state” Democratic Senators waffling about and saying they are, ahead of a mid-term, being put in an impossible position to have to explain to their (White) “middle class” and (White) “working class” constituents (who were already blowing up their phones about “CRT”) why they voted for a Black woman Supreme Court nominee who, they’ll say, supported “Black Lives Matter.”

Ironically, Biden was not only Senate Judiciary Chairman when Clarence Thomas was confirmed and infamously known for his harsh mishandling of Anita Hill (something he was forced to apologize for years later), but he was the same Senate Judiciary Chair who showed little appetite for a confirmation spat over Lani Guinier. His track record on Black women before the Senate Judiciary Committee in two very high profile instances is not stellar. Yet, he has tried to make up for that with the historic selection of a Black woman as his Vice President and the spectacular nomination and approval of five Black women in one year to the federal appelate bench. Still, appeals courts are much lesser known than the Supreme Court. Hopefully, Biden does not do what Clinton did and simply plows ahead. He cannot renege on his pledge. Ignore the polls and keep Senate Democrats in line and, depending on the nominee, see if there is a Republican or two interested in making history with him.