When Chief Justice John Roberts was asked what he'll miss most about his retiring colleague, he didn't hesitate. Justice Stephen Breyer, he said, was a dear friend with a "surprisingly comprehensive collection of riddles and knock-knock jokes." Now, the real riddle is his replacement. When Breyer finishes out his term in June, plenty of people will be knocking on the door. Who's there? If the president's track record is any indication, we already know one thing for certain. Whoever it is will treat the Constitution the same way this administration has: with contempt.
For the White House, desperate to get the high beams off this president's catastrophic failures, news of Breyer's retirement was a lucky break. Although the 83-year-old Clinton appointee was upset at the announcement's leak, President Biden was anything but. Bogged down by another international mess, a tanking economy, corruption allegations, the border, and flatlining approval ratings, the administration knows it desperately needs to change the conversation. In the administration's mind, the chance to nominate a woke activist to the country's highest court is exactly what the doctor ordered. Combine that with Biden's vow to make race and gender the driving factor, and it's a virtual Valentine to the radical Left.
That might thrill hard-core Democrats, but it's not exactly helping Biden with the people he needs most -- voters. "I've been studying candidates' backgrounds and writings," the president said. "I've made no decision except one. The person I will nominate will be someone with extraordinary qualifications, character, experience and integrity, and that person will be the first black woman ever nominated to the United States Supreme Court."
To most people, it didn't feel like a grand, equitable gesture. It felt like identity politics run amok. "Typical," Senator Josh Hawley (R-Mo.) fumed, of an administration that's been "race-obsessed, gender-obsessed" from the beginning. And Americans seem to agree. In a brand new ABC poll over the weekend, 76 percent of Americans said they wanted Biden to consider "all possible nominees." Only 23 percent think he should limit the pool to black women.
Even the Washington Post's Ruth Marcus couldn't help but admit, "Would I be more comfortable if Biden hadn't been quite so explicit? Yes. Partly because it carries an aura of unfairness to announce that no one will be considered who does not meet an announced racial test," she wrote. Still, she insisted, the criticism over Biden's criteria seems "racially tinged." In other words, the Wall Street Journal's editors point out, "What she's really saying is that conservatives are right in their criticism but only liberals can say so... The Court and the public deserve a robust debate about the nominee, whether black, white, Asian, man, woman, whatever."
If the president thinks this is his ticket back into his party's good graces, he may be overestimating the situation. The Washington Times's Jeff Mordock agrees with a lot of experts who think the benefits of a Supreme Court nomination fight "cuts both ways." On "Washington Watch," Mordock pushed back on the idea that this is the cure to what ails Biden. "I think it's something that's going to energize the Democratic base ahead of the midterms, but it's also going to mobilize Republicans. I think both sides are going to see the ideology of the candidate that the president is going to put forward. It's going to motivate both sides to be active and especially with the midterms right down the road."
That's good news for the GOP, whose party has historically been much more energized by Supreme Court vacancies than Democrats. In 2016, Donald Trump owed a big chunk of his upset win to the empty seat left behind by Antonin Scalia. One in five voters said the high court was the "most important factor" in their decision -- and the majority of them (56 percent) broke for Trump. "Biden and his team might start to think they've scored a big win, righted the ship, endured the worst of the storm, and so on. But other than satisfying some progressive activists, replacing Stephen Breyer with a new, younger, like-minded justice won't have done much," NRO's Jim Geraghty predicts. "Appointing nominees to the nation's highest court is an important duty, but the Supreme Court isn't really what's bothering Americans right now."
He's right. The next Supreme Court nominee isn't going to lower the cost of gasoline or put food on empty shelves. What it could do is remind Americans that Biden's real priority isn't unifying the country or tempering his party's fringe -- it's installing hard-core extremists at the highest levels of power. And ironically, that's not what the man he's replacing would have wanted. Breyer, in a Harvard Law School lecture last April, surprised a lot of Democrats when he said judges shouldn't be beholden to anyone's ideological agenda. "They are loyal to the rule of law, not to the political party that helped to secure their appointment."
Senate Minority Leader Mitch McConnell (R-Ky.) couldn't agree more. On the floor, he sent a pointed reminder to the president that "to the degree that [Joe] Biden received a mandate, it was to govern from the middle, steward our institutions, and unite America. The president must not outsource this important decision to the radical Left. The American people deserve a nominee with demonstrated reference for the written text of our laws..."
If these past 12 months are any indication, Biden probably won't listen -- not to Republicans, and not to the American people. That's a shame, because the only black and white that should matter in this debate is the plain text of the Constitution.