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Biden’s Focus For SCOTUS Pick Is Wrong And Demeaning

By Adam Carrington for RealClearPublicAffairs

With Justice Stephen Breyer’s announced retirement, public discussion has turned to whom President Biden will nominate for the United States Supreme Court.

Unfortunately, so far, media and politicians have focused overwhelmingly on 2 characteristics: race and sexuality. President Biden promised that he would nominate a black woman.

For several reasons, this focus can be very sad. It distracts from what is most important in a judge. Martin Luther King Jr. famously said he looked forward to a time when his children would “not be judged by the color of their skin but by the content of their character.”

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Judge candidates shouldn’t be judged on their skin colour but rather their judicial abilities and philosophical philosophy. Is the candidate well-versed in law? Can she write clearly and well-thought out opinions to explain the law, facts and how they are being applied?

Does she see judges exercising “merely judgment” as Federalist 78 defined judicial power?

Judges should avoid using their own opinions when making decisions. She should use an array of long-standing judicial tools to discover the lawmakers’ intent and faithfully apply it to the case at hand. This is essential because it not only fulfills the role of judge but also protects the rule and law.

In addition, questions that are focused on race and sexuality could lead to the encouragement of their antagonists. An undue emphasis on these accidents of birth could – whether accidentally or intentionally – encourage choosing judges who exercise their own will, not judicial judgment. It is possible for the law to become more than a matter of opinion, and not just a set of statutes.

The second is that it undermines what it claims it promotes: equality. In the section of “The Federalist Papers” on the House of Representatives, Publius discussed the accusation that the House would operate as a stealth aristocracy – the rule of elites. Publius counters this claim by noting that representatives must meet certain eligibility criteria.

They must be at least 18 years old, have lived in their district for the past five years (if they are not natural-born), or meet other requirements. Who is eligible to become a representative, other than those limitations? “Every citizen whose merit may recommend him to the esteem and confidence of his country,” Publius says.

The selection of Supreme Court judges is similar. There are fewer requirements for the Supreme Court than those listed in the House’s Constitution. As such, certain qualities are required, including knowledge of law and proven ability to discern and apply the law. In these cases we ask who is the most qualified.

We should not, as Publius said about the House, reject candidates because of the “qualification of wealth, of birth, of religious faith.” We should not – and the Constitution Does not – condone selection based on a person’s wealth, family name, or confession of belief. Why, if we reject these criteria, should we not also reject a person’s sex or skin color as determinative?

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These characteristics should not determine who holds a House chair. These qualities should not be used to determine who can hold a House seat.

Third, and finally, placing such a dominant focus on a person’s sex and race risks demeaning the person selected. Less will be ascribed to the woman’s judicial abilities and philosophy and more to her sex and skin color. This is unfair for her and anyone else Biden chooses.

This is already evident with Clarence Thomas, the black Supreme Court Justice. His frustration is expressed by the fact that his judiciary abilities are often downplayed to favor of his assumption that he was promoted through affirmative actions. Biden’s nominee will get similar treatment, which will cast doubt on her own relevant capacities.

There is still time for us to change the conversation. Biden hasn’t revealed his nominee; Senate hearings and a vote await. Let us focus on the candidate’s Relevant qualities – her judicial acumen and approach to judicial power. We can achieve this focus by focusing on the important things. Should celebrate diversity.

Biden can nominate any woman who is of color if he chooses. Then we could be celebrating diversity in another way. We could celebrate the fact that a nominee of any sex or race can occupy the nation’s highest bench.

We are, after all, what we truly are, equal citizens of the law and humans.

Real Clear Wire permission granted permission for this syndicated article.

Hillsdale College’s associate professor of political science is Adam M. Carrington.

Contributors and/or content partners may express their opinions, but they do not reflect those of The Political Insider.