JONATHAN TURLEY: What’s astonishing is, this is not just unprecedented, but unnecessary, for the president to say that he would not consider any other candidate based on their race or gender. He would only consider Black females.
You know, diversity issues have been raised by presidents in the past. But they have been raised as sort of preferences, not exclusionary rules. Indeed, the Supreme Court has declared exclusionary rules like this one to be unconstitutional or unlawful when applied to schools or businesses.
And so you have this inherent conflict that he [Biden] has created, where this nominee will sit and hear arguments in two cases on the constitutionality of this type of exclusionary rule.
Now that doesn’t mean that this can be reviewed, or that his choice can be reversed. But what’s odd is that many of the media outlets are saying, well, other presidents have done this – and that’s just not true.
You know, they say that Reagan did this, that when he appointed O’Connor, Reagan said that he would give one of his first positions, one of the vacancies, to a woman, but the White House stressed that was not a guarantee, and when O’Connor was selected he had a short list with a majority of men on it.
Trump, when he said that he would be putting a woman on the Supreme Court, had already spent months and months with a public short list that they’d been vetting. Barrett had been a frontrunner in the previous nomination. And when he [Trump] said he was going to put a woman on the court, it was days before he was going to announce her name.
What these presidents didn’t do is they didn’t say that they would not consider anyone else beyond people with this race, this gender, as specified in an exclusionary threshold rule.
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