Confirmation bias: The fighting has already begun, and Biden hasn’t even named a nominee | TheHill – The Hill

The late Sen. Ted Kennedy (D-Mass.) once said that "Supreme Court nominations are an occasion to pause and reflect on the values that make our nation strong." As a new confirmation process is about to begin, Kennedy's words could guide us, if only we could agree on what those values are.

Confirmations often are a reflection of our political divisions and even our rage. Even with that history, the confirmation fight over replacing Justice Stephen BreyerStephen BreyerWhite House confirms Judge J. Michelle Childs under consideration for Supreme Court Photos of the Week: Breyer retirement, bridge collapse and White House cat Willow Senate panel delays confirmation hearing for circuit court nominee amid SCOTUS speculation MORE sets a new and ominous record: The controversy began before Breyer announced his resignation, before anyone was nominated by President BidenJoe BidenFormer chairman of Wisconsin GOP party signals he will comply with Jan. 6 committee subpoena Romney tests positive for coronavirus Pelosi sidesteps progressives' March 1 deadline for Build Back Better MORE. We seem to have reached the ultimate political stage of development, of no longer even needing a nominee for our confirmation fights.

The controversy over this nomination actually began roughly two years before the vacancy was announced. In March 2019, Biden said during a Democratic primary debate that he would only consider black females for the next Supreme Court vacancy. It was a promise elicited byRep. James Clyburn (D-S.C.) during a break in the debate; Clyburn then gave Biden his critical endorsement before the key South Carolina primary. The judge Clyburn supports is now on Bidens short list.

The pledge not to consider people based on their race and genderraised immediate concerns. This week, with Justice Breyer standing beside him, President Biden affirmed that he wouldexclude anyone who is not black or female. He would, in other words, not even consider Breyer himself, or even the late Justice Thurgood Marshall, because they are the wrong race or gender.

In making his pledge, Bidencreated a glaring contradictionfor the court. He is using a threshold exclusion based on race and gender that the court has repeatedly declared either unconstitutional or unlawful for schools and businesses to use in their own admissions or hirings. There is a difference between a preferential and an exclusionary rule in selection. That contradiction will be magnified this term after thecourt accepted two cases that may further curtail or even bar the use of racial preferences in college admissions. Indeed, the new justice will hear arguments on the discriminatory use of such criteria after being initially selected not in a preferential rule, but an actual exclusionary rule based on race and gender.

In response to that observation, a host of commentators insisted that PresidentsReagan, TrumpandGeorge H.W. Bushmade the same pledge.That is false.While seeking to appoint women and AfricanAmericans, none of the three excluded otherraces or genders from consideration, and they had diverse short lists.Notably, however, nocommentatorsactually denied that Biden was using a test foradmission tothe court that the High Court itself would not allow for universities or businesses. Even if not unlawful, there is a legitimate question of whether a threshold test considered unconstitutional for schools should be used for the court that is tasked with barring such tests.

After applauding Biden for excluding candidates on the basis of race and gender (including Asian Americans and Hawaiians), Sen. Mazie HironoMazie Keiko HironoDemocrats, poised for filibuster defeat, pick at old wounds Schumer prepares for Senate floor showdown with Manchin, Sinema Dems worry they'll be boxed out without changes to filibuster, voting rules MORE (D-Hawaii) went on MSNBC to emphasize one other important credential: a willingness to go beyond what the law says, in order to do what is right.

Hirono told MSNBC's Ari Melber that she is looking for "someone who will consider the impact, the effects of whatever decision-making is on people in our country so that they are not making decisions just based on which I would like them to base it on law, which would be nice, and precedent, and who are not eagerly trying to get rid of decades of precedent that would protect a womans right to choose, for example, and voting rights, et cetera. But Id like a justice who also will take into consideration the real-life impact of the decisions he or she will be making.

If you unravel that statement, you find a striking (and, frankly honest) statement that Hirono wants someone who will not be just another justice "making decisions just based on ... law" but who "will take into consideration the real-life impact of the decisions he or she will be making.

Hirono has often been criticized for inflammatory statements during confirmations, as well as hersupport for court-packing. During the Brett KavanaughBrett Michael KavanaughSchumer finds unity moment in Supreme Court fight Manchin open to supporting Supreme Court pick more liberal than him Vaccine mandate for health workers starts to take effect MORE confirmation, Hirono strongly implied more than once that the nominee wasnot entitled to a presumption of innocenceand that men should "just shut up."

While endlessly controversial, Hirono may be one of the more honest members of the Senate: Most of her colleagues adopt euphemistic or obscure terms to convey such notions without taking ownership of the real implications. Many, for example, embraced Justice Sonia SotomayorSonia SotomayorIncoming Georgetown Law administrator apologizes after backlash over Supreme Court tweets Supreme Court clears way for Alabama execution Sotomayor: It's important that Supreme Court not be seen as 'institution for entertainment' MORE's statement that a "wise Latina"might very well reach a better conclusion in a case than a white man. Notably, that statement wasmade in opposition to the famous statement of Justice Sandra Day O'Connorthat she did not view herself as a female jurist, that on a legal issue a wise old man and a wise old woman would reach the same conclusion.

There is no question that life experiences shape our perspectives and values. However, O'Connor was emphasizing that citizens rely on justices to rule on what the law means, not what they want the law to mean. If it is constitutional, what the law means should not depend on the impacts you favor or disfavor. The danger of identity politics shaping constitutional interpretations is precisely what O'Connor sought to rebut. The meaning of the Clean Air Act or the Commerce Clause should not depend on an individual justice's life experiences. Likewise, the fact that a justice is a Jew, a Christian or an atheist should not shape their interpretation of the Constitutions religion clauses.

Of course, the relevance of one's life experiences depends greatly on ones ideological bent. For example, while liberal lawmakers and many in the mediacelebratedthe background of Justice Sotomayor as "inspiring," they largely ignored the incredible life story of Clarence ThomasClarence ThomasBiden's Supreme Court choice: A political promise, but also a matter of justice Manchin and Sinema must help Biden make the Supreme Court look more like America The Hill's Morning Report - Who will replace Justice Breyer? MORE. While Sotomayor spent time in public housing with a single mother, Thomas grew up speaking Gullah, a Creole dialect, and his home was a one-room shack with dirt floors and no plumbing; he grew up without a father, who left him at age two. Thomas, the second African American to sit on the court, did notmake the cut of "Great African Americans"featured by the Smithsonians African American Museum but his accuser during his Senate confirmation hearing, Anita HillAnita Faye HillMeet Washington's most ineffective senator: Joe Manchin Joe Biden's surprising presidency Gloria Steinem: 'International Women's Day means we are still in trouble' MORE, did.

The life experience of Justice Amy Coney BarrettAmy Coney BarrettBiden's Supreme Court choice: A political promise, but also a matter of justice The Hill's Morning Report - Democrats sense opportunity with SCOTUS vacancy Schumer finds unity moment in Supreme Court fight MORE also was not a positive factor in her confirmation. Ibram X. Kendi, an influential liberal race theorist, compared Barrett's adoption of two Haitian children to being a "white colonizer" and suggested that she is using them as "props." Hirono has been criticized fortargeting judicial nominees deep Catholic beliefsand amplified her opposition to Barrett by voting "Hell, no" on the Senate floor. (Hirono is now calling on GOP colleagues to "keep an open mind" with Biden's nominee.)

After the Kavanaugh bloodletting, this is not an auspicious beginning.

However, this nominee will not a transformative pick in terms of the likely outcomes of the court. Breyer will be replaced by a someone selected as a reliable vote on the left of the court; thus, the nominee will not change the courts balance.

The question is whether this confirmation will change how future nominees are selected.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter@JonathanTurley.

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Confirmation bias: The fighting has already begun, and Biden hasn't even named a nominee | TheHill - The Hill