This probably isn’t a true backfire. For one thing, making this pledge in 2020 may have netted some much-needed additional votes. Women and black voters were key drivers of his victory and his margins in many swing states were razor-thin. Biden is surely willing to absorb a bit of grumbling from the general electorate now as the price for becoming president in the first place.
For another, with everything that’s on Americans’ minds at the moment, it’s hard to believe Biden using racial preferences in choosing a SCOTUS nominee will matter much this fall. Who’s the voter who was prepared to vote Democratic in November despite inflation and the endless pandemic but simply couldn’t tolerate the thought of Biden acknowledging openly what other presidents have done quietly with their judicial appointments in the past?
And yet, I do wonder if the pledge will hurt him indirectly, as just another item in the list of things voters don’t like about his administration. It’s not so much that promising to limit his Court choice on the basis of race and sex will flip any votes in itself, rather that it might give voters who were lukewarm about him already one more reason to view him dimly. That could matter if COVID and rising prices begin to ease this summer, causing people to give him a second look. The deeper the hole he’s in when that happens, the harder it’ll be to climb out of it.
Either way, these new numbers from YouGov shouldn’t surprise us. Two weeks ago, an ABC poll found that 76 percent of Americans wanted Biden to consider “all possible nominees” for the Breyer vacancy rather than keep his pledge to appoint a black woman. Today YouGov finds roughly a third of the public thinks it was a “good idea” to restrict his choices demographically. And a clear majority deems his goal of appointing the first black woman to the Court not particularly important.
The survey of 1,628 U.S. adults, which was conducted from Feb. 3 to 7, found that a clear majority of those polled (55 percent) say nominating a Black woman is either “not very” (19 percent) or “not at all” (36 percent) important to them. Just 23 percent say it is “very important.”…
Likewise, just 36 percent of Americans say Biden’s pledge was a “good idea,” while the rest say it was either “a bad idea” (32 percent) or “neither good nor bad” (32 percent)…
Asked whether “the best possible candidate should be chosen regardless of race, gender or sexuality” or whether “the best possible Supreme Court should include qualified justices with a variety of backgrounds and experiences,” the former beats the latter by 8 percentage points, 49 percent to 41 percent.
Independents are much closer to Republicans than to Democrats on the key questions. Asked whether it was a good or bad idea to promise to appoint a black woman, indies split 27/35. For Democrats those numbers were 67/10 and for Republicans 14/60. As to whether adding a black woman to the Court is “important,” 80 percent of Democrats versus 16 percent of Republicans say so. Among independents, it’s 35 percent.
Asked whether diversity should be a consideration in nominating someone (which it is to some degree for both parties), indies again align more closely with Republicans than Democrats:
Americans don’t like knowing that the president is practicing racial discrimination in choosing nominees. They prefer the polite fiction that everyone’s being chosen purely on merit, irrespective of politics. We’ll see if Biden pays any price for it. Maybe not: In the YouGov poll, more than half of Americans said they thought each of his top three candidates for the Breyer vacancy is qualified for the Court.
Speaking of which, he may be running into trouble on the left with two of those three candidates. Ed wrote a few days ago about how James Clyburn’s favored choice, Judge Michelle Childs, is viewed suspiciously by progressives due to her time working at a firm that’s known for representing management in disputes with organized labor. Members of the firm have told reporters that Childs had already left (2000) before its practice on unionization began (2004) and that Childs also represented plaintiffs in workplace discrimination suits while she was there. But maybe the left’s concerns about her combined with her age (she’s 55) will be enough to convince Biden to pass on her. The last thing he wants from this process is to have progressives mad at him.
Meanwhile, although Ketanji Brown Jackson is viewed as the frontrunner and seems acceptable to all factions, today brings an interesting twist. Is she now in trouble too?
The first Black federal judge in Alabama, U.W. Clemon, sent a letter to Biden on Feb. 4 urging him not to consider appeals Judge Ketanji Brown Jackson for the Supreme Court, according to a copy obtained by NBC News…
“I don’t believe she exemplifies the justice the black community deserves,” Clemon said in a brief telephone interview.
He pointed to a case she adjudicated, Ross v. Lockheed, a 2016 class action suit on behalf of 5,500 black workers of Lockheed Martin. A settlement was reached which provided $22 million and reforms related to the promotion process at Lockheed, but workers were denied the settlement and changes in corporate culture.
“If Judge Jackson is appointed to the Supreme Court, simple justice and equality in the workplace will be sacrificed,” Clemon wrote.
Biden certainly doesn’t want black voters mad at him after this process either. The whole point of his pledge was to reward them for their support.
If Childs and Jackson are both compromised, that leaves 45-year-old Leondra Kruger as the “safe” pick. But Kruger potentially faces some trouble as well: She’s known as a moderate and consensus-builder on the California Supreme Court and lefties aren’t in the mood to send any moderates over to SCOTUS at a moment when conservatives have a 6-3 majority and Roe is hanging by a thread. My guess is that Jackson, who has lots of connections in Washington, will end up being the pick, Clemon’s misgivings notwithstanding.
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