It’s been roughly two days since news of Supreme Court Justice Stephen Breyer’s impending retirement from “active judicial service” leaked, and the reaction from the more Republican corners of the internet and media world has been…revealing.
Over and over, prominent GOP personalities have spent the last two days turning what would have been the highest possible calling for a Republican president — deciding who sits on the highest court in the land — into something to be mocked and de-legitimized for no other reason than the fact that the person in the White House is no longer one of their own.
One such instance came from Cato Institute scholar and incoming Georgetown University Law School professor Ilya Shapiro, who apparently decided that President Biden’s pledge to appoint a Black woman to the court was somehow going to result in the next justice being someone akin to a female version of Jackie Childs, the fictional parody of Johnnie Cochran who appeared on the NBC sitcom Seinfeld. He suggested in a series of now-deleted tweets that Biden’s most qualified possible pick would be District of Columbia Circuit Chief Judge Sri Srinivasan, who is neither a woman nor Black. He further opined that because Judge Srinivasan “doesn’t fit into latest intersectionality hierarchy,” Biden’s pick would be a “lesser Black woman”.
“Because Biden said he’s only consider[ing] black women for SCOTUS, his nomination will always have an asterisk attached. Fitting that the Court takes up affirmative action next term,” he added.
Shapiro, who has served as editor of Cato’s Supreme Court Review, seems to have developed a highly selective memory — because there’s no president more revered in the libertarian-conservative space Cato is part of than one Ronald Wilson Reagan. And Reagan did the exact same thing.
When the then-ex-California governor was campaigning for the presidency against Jimmy Carter in 1980, the Equal Rights Amendment and women’s rights were front-and-center issues on which he was widely perceived to be on the wrong side. Seeking to improve his standing with women, he convened a press conference in Los Angeles on October 15, less than a month before the November presidential election. Reagan told the assembled press he intended to select a woman to fill “one of the first Supreme Court vacancies in [his] administration” if elected to the presidency.
“It is time for a woman to sit among our highest jurists,” he said, before adding that he would “also seek out women to appoint to other federal courts in an effort to bring about a better balance on the federal bench.” And when the late Justice Potter Stewart (known most widely for his “I know it when I see it” description of hardcore pornography) retired six months into Reagan’s term, Reagan’s selection to succeed Stewart was indeed a woman, Sandra Day O’Connor.
But it wasn’t just academics owning themselves while trying to own the libs. There was also one particular gem from Donald Trump Jr, the eldest son of the twice-impeached, one-term ex-president who once described nominating justices to the high court as “the most important” decision a president can make.
The younger Trump took to his Instagram account to repost what appeared to be a photo of Justice Brett Kavanaugh, but with the face of Biden’s youngest (and only living) son, Hunter Biden, photoshopped over the justice’s face, as if to suggest that the president should put Hunter on the court. In a caption accompanying the fake photo, Donald Jr mockingly quoted a compliment Biden once paid to his son. “Remember, he’s the smartest guy Joe knows,” he wrote, adding the hashtag #SCOTUS (Supreme Court of the United States) for good measure.
The “Justice Biden” meme was a typical example of the eldest Trump child’s social media output, which has made him a GOP celebrity in his own right. Hunter Biden is a favored target of Donald Jr, who frequently finds reasons to bring up his well-documented history of drug abuse and revisit the Ukraine-centric conspiracy theory which led his father right smack into the first of his two impeachment trials.
But were any “libs” really “owned” in this instance? Not so much.
Despite his frequent mockery of the current president’s son, the former president’s son seems curiously ignorant of both his target and the subject matter which was meant to make his attempt at a joke topical. Donald Jr might take a great deal of pleasure in depicting Hunter Biden as an incompetent, bumbling ignoramus whose background makes him completely unqualified to be anywhere near the Supreme Court, but he might want to check some Google results first next time.
Had he did a simple Google search, he’d find out that Hunter Biden possesses the exact same legal credentials as four sitting members of the court. Like Justices Samuel Alito, Sonya Sotomayor, Clarence Thomas, and his father’s own appointee Brett Kavanaugh, President Biden’s second son graduated from Yale Law School.
And had the ex-president’s namesake checked the Supreme Court’s own records, he’d have eventually come to Page 289 of the Supreme Court Journal for the October 2006 term. Under the section titled “Admissions to the Bar on Written Motions,” he would have discovered that one Robert Hunter Biden was admitted to the Supreme Court bar on Monday, October 30, 2006. That means the Supreme Court of the United States considers Hunter Biden qualified to argue cases before it. To be sure, it’s not the usual years on the federal bench most Supreme Court nominees have these days, but he’s about as qualified as some of Donald Trump’s nominees to lower courts.
These are just two examples of the sorts of critiques of the upcoming nomination that are passing for discourse on the American right these days.
When Donald Trump won the presidency, it was in no small part because he secured the support of the institutional right by outsourcing his court picks to the ultra-conservative Federalist Society. And for years, there has been no greater priority for the American conservative movement than its quest to reshape the courts with jurists who’d reverse a string of decisions which secured the rights of women, criminal defendants, LGBT+ Americans, and racial minorities, chief among them the 1973 decision legalizing abortion in the case of Roe v Wade.
Democrats largely ignored the courts except when sounding the alarm over nominees considered too openly hostile to these expanded rights for non-white, non-male, non-heterosexual Americans. By and large, they failed to stop the conservative legal movement’s project, which culminated with Trump’s nomination of Amy Coney Barrett to replace the liberal icon Ruth Bader Ginsburg.
Biden’s first pick may serve on the court for decades, but will do nothing to change the 6-3 conservative majority that appears poised to overturn a string of precedents, starting with Roe. That’s why Republicans are making fun of the as-yet-unnamed nominee and the man who will nominate her, rather than screaming bloody murder over the very thought of her.
Because they’ve already won, it’s now a joke to them.