The GOP’s Two Attacks on Biden’s Possible Court Pick

Today on TAP: The top Republican on the Judiciary Committee can’t complain about ‘affirmative action,’ but there’s a fallback strategy.

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In October of 1980, Ronald Reagan had a problem. His polling showed he had opened a lead among likely male voters in his race to unseat Democratic President Jimmy Carter, but that he trailed badly among women. His response was to call a press conference where he announced that he’d appoint a woman to the Supreme Court the next time a seat came open. When a seat did in fact come open the following year, then-President Reagan honored his pledge by nominating Sandra Day O’Connor to the Court.

Only one Republican serving in the Senate today was a senator back in 1981 when O’Connor’s nomination came before the body for an up-or-down vote. As events would have it, that senator is now the ranking Republican on the Senate Judiciary Committee: Iowa’s Charles Grassley.

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Did Grassley object that Reagan was engaged in some kind of gender-based affirmative action by limiting his choice to women only? (That’s an argument that a number of his current Republican colleagues have made against President Biden’s announcement—made, like Reagan’s, during his run for the presidency—that he’d appoint a Black woman to the Court.)

No. The famously outspoken Grassley emitted not even a syllable of opposition to Reagan’s carrying through on his pledge to nominate a woman. Neither did any of his Republican colleagues, who then controlled the Senate. O’Connor was confirmed by a vote of 99 to zero.

If today’s Republicans had any capacity for embarrassment, their blatant double standard on this issue might give them pause. So far, however, their response to Biden’s choice—which, of course, precedes Biden’s choice—continues to focus on his winnowing of the field in accord with what they see as the dastardly doctrine of affirmative action.

Actually, that’s one of two Republican responses we’ve seen so far. The second is to hint at a slight preference for Judge J. Michelle Childs, the preferred pick of South Carolina Democratic Pooh-Bah James Clyburn. As my colleague Alex Sammon documented yesterday, Childs’s career includes dozens of instances when she represented employers against workers while in private practice. That may explain why South Carolina Republican Lindsey Graham has sounded positive about her, and why The Wall Street Journal ran a curious op-ed yesterday supporting her nomination. This posturing toward Childs creates some space for Republicans to express dismay if, as expected, Biden picks Judge Ketanji Brown Jackson, a distinguished jurist who decisively struck down President Trump’s efforts to curtail union activity among federal employees. By their grunting acceptance of Childs, some Republicans doubtless think they can duck accusations that they’re playing to a white racist base (or are white racists themselves), while positioning themselves to go after Jackson, should she be the nominee, on presumably less racism-tainted ideological grounds.

That’s clearly the tack that the senior Republican on the Judiciary Committee will have to take. When it comes to the “affirmative action” attack, the voluble Chuck Grassley will have to shut up.

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