Three-quarters of Americans, according to a new ABC News/Ipsos poll, disagree with President Joe Biden’s promise to consider only black women to succeed retiring Supreme Court Justice Stephen Breyer. Even a majority of Democrats say he should consider “all possible nominees.” The origin and context for Biden’s exclusion, however, make it more radical than most people think.
As to its origin, the New York Times’ Michael Shear writes that Biden’s promise is meant to “make good on . . . a campaign year pledge that helped revive his flagging campaign.” The most powerful Democrat in South Carolina, Representative James Clyburn, had urged Biden to make that promise during the Democratic presidential candidates’ debate in Charleston on February 25, 2020. Biden did; Clyburn endorsed him; Biden won the South Carolina primary four days later, and the rest is electoral history.
While Biden’s approach for replacing Breyer has this quid pro quo origin, it also reflects the intensely political view of the judiciary embraced by the Left. During that South Carolina debate, Biden said that he would appoint a black woman “to make sure we, in fact, get everyone represented” on the Supreme Court. Speaking recently about Biden’s Supreme Court pick, Senate Majority Leader Charles Schumer (D., N.Y.) said that the courts should “look more like the country they serve.” When Americans go to court, Schumer said, “they should trust that those who render judgment will be able to understand each litigant’s lived experience and bring a modicum of human understanding required to apply the law equitably.”
Don’t miss that Schumer used “equitably” instead of “equally,” a shift that was both deliberate and significant. The oath of office required of federal judges states that they must administer justice “without respect to persons, and do equal right to the poor and to the rich” and discharge their judicial duties “impartially.” The Constitution guarantees the “equal protection of the laws,” and the same principle is literally chiseled in stone on the Supreme Court building: Equal Justice Under Law.
As Vice President Kamala Harris tweeted in 2020, however, “there’s a big difference between equality and equity.” Equality means treating people as equal individuals, while equity means treating people as members of unequal groups. “Equitable treatment,” Harris tweeted, “means we all end up in the same place.” In the judicial system, this means that judges use whatever criteria or standards they wish to identify who “we” are and what “the same place” is. Judges choose the result they want, then find a way to make it happen, whether the law allows them to do so or not.
You might have heard of jury nullification, which is the “refusal to apply the law . . . because the result dictated by the law is contrary to the jury’s sense of justice, morality, or fairness.” Well, in Biden/Schumer/Harris world, judges mete out equitable, rather than equal, justice based not on what the law requires but on their own sense of justice, morality, or fairness. Call it judicial nullification.
Equal justice under law becomes equitable justice under judges. Their decisions are driven by judges’ personal perceptions about litigants’ lived experience, their assessment of how groups or classes should be situated or reconfigured, and their agenda for how society should be rearranged. In short, this is not law at all; it is politics.
Needless to say, this radical transformation from equality to equity directly challenges the principles by which our entire system of government, and the judicial process within it, operate. It rejects the Declaration of Independence’s principles that “all men are created equal” and that government’s purpose is to secure “certain inalienable rights” of individuals. It abandons the Constitution’s principle, noted above, of equal protection of the laws; in fact, it is incompatible with the very notion of individual rights. And it turns on its head the design of America’s founders for the judiciary; they wanted to reduce “arbitrary discretion,” while the politicized system that Biden wants to create maximizes it.
In this system, a litigant’s “shared experience” is really just cover for judges doing whatever they want to do. There’s no objective way to know whether a judge actually understood a litigant’s lived experience inaccurately, interpreted it incorrectly, and ended up drawing illegitimate inferences from it. None of that matters, however. This system is about enhancing judges’ power to, as Harris put it, make sure that we all end up in the same place – or at least the judge’s version of it.
Even if this stuff about lived experiences and equity makes you feel good, take a minute and ask if it really makes any sense. One of the candidates being considered for the Breyer vacancy sits on the California Supreme Court. Its current six members include three women (Filipina, white, and black) and three men (Taiwanese, white, and black). What should a Hispanic male litigant conclude about the court’s ability to understand his lived experience? None of the justices is Hispanic and only half are men.
Seen in its ideological context, Biden’s promise to appoint a black woman is even worse than simply a quid pro quo to help him gain the White House. It represents a politicized view of the judiciary that rejects impartiality and sees people not as equal individuals, but as members of groups that judges have the power to promote or restrain so that we all end up in the same place.
Whoever Biden actually nominates, senators have an obligation to explore whether she is the kind of judge, and will be the kind of justice, that Biden, Schumer, and Harris say American needs. If the nominee is today a sitting federal judge, having already sworn an oath to do “equal” justice, she should be asked whether, like Harris, she sees a “big difference” between equality and equity. She should be asked whether she sees a judge’s role as making sure that we all end up in the same place.
The very idea of the “rule of law” is being challenged like never before. Biden’s nomination to replace Justice Breyer is a good opportunity to show Americans how the choice between equality and equity will dramatically affect our liberty.