This is the judicial equivalent of saying, “Imagine: Until 2020, American presidential tickets had been entirely white.”
We all have forgetful moments but that would be a doozy.
This is a doozy as well coming from a Harvard-trained lawyer. Especially since the person he’s forgetting was a major figure in American legal history even before he joined the federal bench.
.@SenSchumer: "Until 1981, this powerful body, the Supreme Court, was all White men. Imagine. America wasn't all White men in 1981, or ever. Under President Biden and this Senate majority, we're taking historic steps to make the courts look more like the country they serve." pic.twitter.com/PrEjoLrmPH
— The Hill (@thehill) February 3, 2022
Apparently someone pulled him aside after his floor speech and reminded him that SCOTUS may have been composed entirely of men until 1981 but not quite entirely of white men:
Sorry that I misspoke earlier today. Of course, I remember the dedication and legal excellence that Thurgood Marshall brought to the Supreme Court.
— Chuck Schumer (@SenSchumer) February 3, 2022
That’s not the first time Schumer has denied a person of color his rightful place on the Supreme Court. This tale is familiar to conservative activists but is worth revisiting as we approach a confirmation hearing for Biden’s SCOTUS nominee, when we’ll be told ad nauseam that voting no on a minority candidate can only be motivated by racism.
Back in 2001, Estrada was considered a shoo-in to become a justice on the U.S. Court of Appeals for the D.C. Circuit. With a Harvard degree and record of winning arguments in front of the Supreme Court, the Bush nominee was whip smart. But thanks to Schumer, he never even got a vote in the Senate. The New York Democrat filibustered his nomination seven times…
In purloined emails that were later leaked to the press, an aide to Illinois Sen. Dick Durbin explained to his boss that strategists had “identified Miguel Estrada (D.C. Circuit) as especially dangerous, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.” Afraid of that possibility, Schumer kept filibustering.
The Bush White House described Schumer’s filibustering as “shameful politics.” And after 28 months of being left in confirmation limbo, Estrada had enough. He withdrew his name from consideration and returned to private practice.
Schumer and his party couldn’t tolerate the possibility of Republicans getting to appoint the first Hispanic Supreme Court justice, as likely would have happened in 2005 had Estrada been confirmed to the D.C. Circuit. The risk of Latino voters, among whom Bush had performed well in 2000, shifting towards the GOP in the aftermath was too threatening to Democrats. So they railroaded Estrada, and the distinction of becoming the first Hispanic justice fell to Sonia Sotomayor in 2009.
That’s not the only case in recent history either of Democrats rallying to try to block Republicans from appointing a minority candidate to the bench. In 2005, when George W. Bush nominated Janice Rogers Brown to the D.C. Circuit, it happened again with Joe Biden’s help:
When Democrats derailed her nomination, Bush renominated her in 2005. Brown was eventually confirmed by a vote of 56 to 43 — after Democrats released her and several other Bush nominees in exchange for Republican agreement not to eliminate the filibuster for judicial nominations. Biden voted a second time against her nomination. He never explained why, if Brown was so radical, Democrats let her through but killed 10 other Bush nominees.
The following month, when Justice Sandra Day O’Connor announced her retirement, Brown was on Bush’s shortlist to replace her. She would have been the first Black woman ever nominated to serve as an associate justice of the Supreme Court. But Biden appeared on CBS’s “Face the Nation” to warn that if Bush nominated Brown, she would face a filibuster. “I can assure you that would be a very, very, very difficult fight and she probably would be filibustered,” Biden said. Asked by moderator John Roberts “Wasn’t she just confirmed?,” Biden replied that the Supreme Court is a “totally different ballgame” because “a circuit court judge is bound by stare decisis. They don’t get to make new law.”
Biden joined the opposition to Estrada too, of course. A Supreme Court that “looks like America” has never mattered to the left unless they can take credit for it.
In lieu of an exit question, read Dan McLaughlin on a potentially tough line of questioning for Ketanji Brown Jackson, the frontrunner for the Breyer vacancy. Jackson is a member of Harvard’s Board of Overseers and therefore has influence over university policies like affirmative action, which has led to Asian-American students being denied admission to the school at disproportionate rates. Does the first black woman justice condone racial discrimination against students of Asian ancestry in the name of remedying past racial discrimination against blacks? We’ll find out.