The Morning Jolt

Law & the Courts

Biden’s First Judicial Picks Are an Ode to Identity Politics

President Joe Biden delivers remarks at the White House in Washington, D.C., March 24, 2021. (Jonathan Ernst/Reuters)

On the menu today: The White House announces President Joe Biden’s first slate of judicial nominees, yet another woman accuses Andrew Cuomo of sexual misconduct, and South Dakota governor Kristi Noem vetoes a bill that would prevent biological males from competing against female athletes.

Biden Rolls Out a ‘Diverse’ Slate of Judicial Nominees

President Joe Biden has formally announced the names of his first round of nominees for district and appeals-court judgeships — and don’t worry, the selections are just as diverse as Biden has long promised they would be!

According to the White House press release on the subject, the nominees “reflect the President’s deeply-held conviction that the federal bench should reflect the full diversity of the American people — both in background and in professional experience.”

The White House announcement also includes the necessary ode to identity politics:

This group also includes groundbreaking nominees, including three African American women chosen for Circuit Court vacancies, as well as candidates who, if confirmed, would be the first Muslim American federal judge in U.S. history, the first AAPI woman to ever serve on the U.S. District Court for the District of D.C., and the first woman of color to ever serve as a federal judge for the District of Maryland.

Presumably, if questioned about these nominees, their confirmation, or their work on the bench, White House press secretary Jen Psaki will be quick to point out how “groundbreaking” they are as a result of their racial or ethnic identities, thus avoiding the necessity of responding to questions of substance.

In its statement on the topic, the White House also noted that Biden’s announcement makes him the fastest president in modern history to nominate so many judicial candidates: “With respect to Circuit and District Courts, none of the last four administrations had nominated more than two candidates by this point in their presidency.”

As one New York Times article observes, this is surely an effort on the part of Biden’s team not only to signal a commitment to diversity but also to counter the immense progress that the Trump administration made in filling lower courts with originalist judges (who were, the Times notes sadly, “mostly white men” — one wonders what the rest of them was). The racial diversity of Biden’s picks is a real selling point for the Times, which laments that

After the only African-American judge serving [on the Chicago-based U.S. Court of Appeals for the Seventh Circuit] stepped aside in 2017, Mr. Trump had four chances to make a racially diverse pick for the court. He did not take the opportunity, instead naming four more white judges.

Mr. Biden’s first round of judicial picks were an effort to begin addressing such imbalances while the Senate is under Democratic control. Where Mr. Trump emphasized white male conservatives, Mr. Biden is diversifying not only the ethnic backgrounds of his candidates but their professional ones as well, seeking out lawyers with varied legal careers.

The Times article also cites allies of Biden who say the president “is determined to install judges with different sets of experiences from the mainly white corporate law partners and prosecutors who have been tapped for decades by presidents of both parties.”

But the trouble for Biden is that the diversity he’s demonstrated with these selections is only skin deep. Here in the real world, as opposed to identity-politics la la land, there’s only so diverse a field of nominees to federal judge positions can possibly be, especially when it comes to professional experience.

Most of Biden’s eleven selections graduated from the nation’s top law schools, many went on to prestigious clerkships, and nearly all of them spent at least some time working at high-powered law firms or in the government at some point during their careers. There’s nothing wrong with any of that, of course, but it makes it a little harder to stomach the White House’s pablum about how the list of candidates is so diverse that they’re really all just like you and me!

Another Cuomo Accuser Comes Forward

In a press conference yesterday, yet another woman came forward alleging that New York governor Andrew Cuomo made sexual advances on her without her consent. The accuser, Sherry Vill of Greece, N.Y., is at least the ninth woman to say that Cuomo committed some form of sexual misconduct against her.

Vill alleges that Cuomo kissed her without her consent in 2017, while he was visiting her home after it had been damaged by a flood. Vill is being represented by high-powered feminist attorney Gloria Allred, who announced that she and her client intend to bring the allegation against Cuomo to the attention of New York attorney general Letitia James.

At the press conference, Allred displayed a photo of the incident in question, making this the second of Cuomo’s accusers who has documented a specific instance of sexual harassment or misconduct with an image. Like Vill, Lindsey Boylan, the first of Cuomo’s accusers to come forward, alleges that the governor kissed her without her consent.

Thus far, despite the fact that major Democratic politicians called on him to resign several weeks ago, Cuomo has managed to hold onto his job. The governor has denied all of the stories of inappropriate or unwanted touching, apologizing only for remarks that he admits “made people feel uncomfortable.”

Women have a right to come forward and be heard, and I encourage that fully,” Cuomo told reporters a few weeks ago. “But I also want to be clear: There is still a question of the truth. I did not do what has been alleged, period.”

And, in Cuomo’s effort to stay entrenched in office, his staff has been willing to play dirty: Earlier this month, Cuomo’s aides leaked Boylan’s personnel file — she worked in the Cuomo administration at the time she alleges the governor’s misconduct occurred — to the press, arguing that the public had a right to the information within.

Like anyone accused of crimes or misdeeds, Andrew Cuomo deserves due process as these allegations are investigated. But it’s pretty clear that neither he nor his defenders are interested in cooperating with a search for the truth, and their insistence on “innocent until proven guilty” is harder to take seriously given his previous dedication to the Me Too movement’s silly slogan “Believe All Women.”

Noem Vetoes the ‘Fairness in Girls’ Sports’ Bill

Kristi Noem, South Dakota’s Republican governor, has issued a final veto of the “Fairness in Girls’ Sports” bill, a piece of legislation designed to require that student athletes compete against others of their biological sex. The law was aimed at ensuring fairness for athletes, especially women and girls, who otherwise could be forced to compete against biological males who identify as women.

As I wrote at National Review last week, blocking this bill is a mistake on Noem’s part, and her effort to pass it off as a “style and form” veto is fooling no one:

In addition to entirely removing collegiate athletics from the bill’s provisions, Noem also altered the bill’s language to allow athletes to compete based on biological sex “as reflected on the birth certificate or affidavit provided upon initial enrollment.” This edit would permit a biological male to compete against women if he obtained the appropriate paperwork changing his legal records to match his gender identity — rather than his sex — at birth.

In her veto, Noem proposed removing the section of H.B. 1217 that gave a cause of action to female athletes who allege that they were deprived of athletic opportunities as the result of having been displaced by a biological male. Her changes would also remove a provision requiring student athletes to certify that they haven’t taken performance-enhancing drugs, a crucial enforcement mechanism.

Some critics, including the Republican speaker of the South Dakota House, have argued that some of these alterations amount to an abuse of the style-and-form veto as outlined in the South Dakota constitution.

“Legislators are the ones who make the laws, and the governor signs them,” South Dakota state representative Rhonda Milstead, the bill’s sponsor, told the Sioux Falls Argus Leader. “She’s gutting the bill and writing a new law, and that’s not her job.”

In the face of criticism for her initial veto, Noem quickly formed a coalition to “Defend Title IX Now,” arguing at a press conference that protecting girls’ sports is important to her, but that she doesn’t believe the state could win a lawsuit against the NCAA if it retaliated against state athletic programs as a result of this policy.

Maybe it could, and maybe it couldn’t. But even if we take as a given that there’s always a threat of NCAA or other corporate retaliation against conservative policies, what’s to be done about girls’ sports and girls’ locker rooms? If a conservative governor such as Noem isn’t willing to stand up for the privacy and safety rights of female athletes, for their ability to compete fairly against others of their own sex, who will?

ADDENDUM: It looks like most Americans are sick of “cancel culture,” saying in a poll that they see it as a threat to their freedom. Sixty-four percent of respondents to a Harvard CAPS-Harris Poll said there is a “growing cancel culture” that threatens their freedom. A majority was of the opinion that it’s concerning to share their opinions online, as it could get them banned or fired. Just 13 percent of those surveyed said cancel culture is “not a problem” at all.

Before too long, I think we’ll all be good and ready to cancel canceling.

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