Bench Memos

Law & the Courts

On Race and Gender, Democratic Demagoguery and Double Standards

Neera Tanden attends a hearing with the Senate Committee on the Budget on Capitol Hill in Washington, February 10, 2021. (Anna Moneymaker/Pool via Reuters)

The Biden administration has not yet announced judicial nominations, but from the executive nominations submitted so far, it is already apparent that Democrats will play the race and gender card as a demagogic substitute for actual debate on the merits. We just saw this in the debate over the unhinged nominee for director of the Office of Management and Budget, Neera Tanden, who injected so much bile into public discourse that even a Democrat, Senator Joe Manchin, called her “toxic.” He and Republicans collectively were tarred by Democratic lawmakers and liberal activists. Representative Judy Chu (D., Calif.), chairwoman of the Congressional Asian Pacific American Caucus, called this opposition a “double standard” that “has to do with the fact that she would be a pioneer in that position.” The Tanden nomination was just withdrawn for lack of Senate support.

Similar slurs asserting a racist/sexist double standard are being lobbed from the left at Republicans who oppose Interior secretary nominee Deb Haaland, Health and Human Services secretary nominee Xavier Becerra, and Justice Department nominees Vanita Gupta and Kristen Clarke. (See, for example, here, here, here, here, and here). As if the fact that they have been ideological bomb throwers who have had no compunction about aggressive partisan warfare had nothing to do with it. Haaland is a cosponsor of the Green New Deal, but former congressional cousins Mark and Tom Udall insisted that opposition to her “must be motivated by something other than her record.” As attorney general of California, Becerra filed 122 lawsuits against the Trump administration — an average of one every two weeks — but Rep. Hakeem Jeffries (D., N.Y.) tweeted regarding the Republican opposition to the nominee that he (and Tanden and Haaland) “all happen to be people of color. Coincidence?”

Non-demagogues would have shunned playing the race or gender card, and a more responsible press would have made that point instead of fanning the flames. No less than the Washington Post observed in a report last week, “Many of the president’s Black, Latino, Asian and Native American nominees are encountering more political turbulence than their White counterparts . . . .” A similar sentence could more accurately have been written about the past three Republican presidents’ judicial nominees — not that we would expect a mainstream news outlet to have done so. There are scores of female and minority judicial nominees Democrats tried to block during the Trump administration. Among the more prominent are circuit judges Amul Thapar, Allison Jones Rushing, Neomi Rao, and Kenneth Lee, all of whom were confirmed without a single Democrat voting yes. And Amy Coney Barrett was confirmed to the Supreme Court without any Democratic votes.

Of course, Democratic hypocrisy did not start during the Trump administration, and it includes misconduct on a level we just have not seen on the Republican side. The Democrats’ disgusting treatment of Justice Clarence Thomas still reverberates 30 years later. That was during the first Bush administration.

During the second Bush administration, as Democrats pioneered the tactic of all-out filibusters of circuit nominees, a Democratic staff memo cautioned that D.C. Circuit nominee Miguel Estrada was “especially dangerous, because . . . he is Latino . . . .” Estrada would be filibustered seven times before he withdrew in 2003. Another D.C. Circuit nominee who was a victim of the filibuster at the time, Janice Rogers Brown, was renominated in the subsequent Congress and confirmed only because the “Gang of 14” deal temporarily halted judicial filibusters. During Brown’s roll-call vote, in which she received the support of only one Democrat, members of the Congressional Black Caucus singled her out for protest by walking from the House side of the Capitol to stand in the well of the Senate.

Sadly, this is all of a piece with leftist demagoguery that knows no limit. For years, prominent Democrats tried to smear top Republicans, including Presidents Reagan and both Bushes, John McCain, and Mitt Romney, with the stigma of racism.

The far-left judicial advocacy group Demand Justice was not around during any of those prior campaigns. They were only founded in time to attack Brett Kavanaugh and Amy Coney Barrett. They just launched an ad comparing the current Supreme Court’s majority to the most vicious “opponents of voting rights,” who “swung clubs on a bridge in Selma.” As the dialogue rolls, the ad moves from a photo of club-wielding Alabama police on Bloody Sunday to a photo of Chief Justice John Roberts. Demand Justice is quickly making up for lost time.

The most recent race-baiting is vicious and unjust, but it serves as a subterfuge to conceal just how much the new administration’s nominees belie the image of moderation and unity asserted in President Biden’s inaugural address.


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