Breyer Out Forum

[Anonymous User]

Clyburn is openly cheerleading for Childs on TV, and has made the fairly implausible claim that both Graham and Scott will support her.

[Anonymous User]

Clyburn is openly cheerleading for Childs on TV, and has made the fairly implausible claim that both Graham and Scott will support her.

Not implausible imo. Graham has a history of supporting Dem nominations. Scott idk but he's also not always that reflexively partisan. Doubt they would be the deciding votes though.

[Anonymous User]

Who would a KBJ or Kruger take clerks from?

[Chokenhauer]

The reporting on this unfailingly mentions that Biden "will appoint a black woman." I wish they would have kept this goal private. All it does is embarrass the shortlisters and take attention away from their credentials.

Yeah, they should have kept that aspiration private like Reagan did with O’Connor and GHW did with Thomas

[lavarman84]

The reporting on this unfailingly mentions that Biden "will appoint a black woman." I wish they would have kept this goal private. All it does is embarrass the shortlisters and take attention away from their credentials.

Wouldn't have stopped the behavior we're seeing now. It happened to Sotomayor too.

[Joachim2017]

The reporting on this unfailingly mentions that Biden "will appoint a black woman." I wish they would have kept this goal private. All it does is embarrass the shortlisters and take attention away from their credentials.

Wouldn't have stopped the behavior we're seeing now. It happened to Sotomayor too.

Maybe not, but I agree it was ..."inartful" to frame it the way Biden's team has. I think they probably thought they needed to be very direct about the framing to stir the base. But yeah, it's gotta be at least somewhat annoying and maybe even embarrassing for the shortlisters.

The "debate" in the media/online/twitter-verse re credentials, merit, and AA is also just so frustratingly dumb. Both sides fail to appreciate or acknowledge the legitimate (as opposed to the caricatured strawmen) points the other side makes, so we just go round and round. Maybe I'm naïve, but I'd like to think we could make some progress if both sides engaged with the (best, most charitably construed versions of) the other's arguments, rather than stooping to snatch up the worst for their one-line zingers.

[lavarman84]

Maybe not, but I agree it was ..."inartful" to frame it the way Biden's team has. I think they probably thought they needed to be very direct about the framing to stir the base. But yeah, it's gotta be at least somewhat annoying and maybe even embarrassing for the shortlisters.

The "debate" in the media/online/twitter-verse re credentials, merit, and AA is also just so frustratingly dumb. Both sides fail to appreciate or acknowledge the legitimate (as opposed to the caricatured strawmen) points the other side makes, so we just go round and round. Maybe I'm naïve, but I'd like to think we could make some progress if both sides engaged with the (best, most charitably construed versions of) the other's arguments, rather than stooping to snatch up the worst for their one-line zingers.

What's dumb is that the debate even exists. Once he makes his pick, we can talk merits. But the whining about "discrimination" is unbecoming, especially when the two frontrunners are objectively more qualified than the last SCOTUS appointment.

[Joachim2017]

Maybe not, but I agree it was ..."inartful" to frame it the way Biden's team has. I think they probably thought they needed to be very direct about the framing to stir the base. But yeah, it's gotta be at least somewhat annoying and maybe even embarrassing for the shortlisters.

The "debate" in the media/online/twitter-verse re credentials, merit, and AA is also just so frustratingly dumb. Both sides fail to appreciate or acknowledge the legitimate (as opposed to the caricatured strawmen) points the other side makes, so we just go round and round. Maybe I'm naïve, but I'd like to think we could make some progress if both sides engaged with the (best, most charitably construed versions of) the other's arguments, rather than stooping to snatch up the worst for their one-line zingers.

What's dumb is that the debate even exists. Once he makes his pick, we can talk merits. But the whining about "discrimination" is unbecoming, especially when the two frontrunners are objectively more qualified than the last SCOTUS appointment.

I think the debate is a reasonable one to have (for those who are interested and can engage with one another in good faith; if all you're on TLS for is the exact date you get your $10k raise, read no further...). For example, the applicability of some of the key flash terms is more subjective, and for others it's more objective. I agree that KBJ is more qualified than Kavanaugh, but that's because of my view about what counts as more qualified, in context. Others can reasonably disagree. But that doesn't mean -- because it's orthogonal to -- the claim that KBJ will not have enjoyed a form of race-based discrimination if she's picked (she probably will be). That's just what "discrimination" means.

I'm not saying it's all-things-considered justified or unjustified to pick her, or that she would be undeserving, just that sometimes you have to call a spade a spade. Two things can be true simultaneously: that she's just as (if not more) deserving/qualified than anyone else, and that she got the gig -- over similarly deserving/qualified non-POC persons -- because of favorable race-based discrimination.

[JorgeMichael]

I'm not saying it's all-things-considered justified or unjustified to pick her, or that she would be undeserving, just that sometimes you have to call a spade a spade. Two things can be true simultaneously: that she's just as (if not more) deserving/qualified than anyone else, and that she got the gig -- over similarly deserving/qualified non-POC persons -- because of favorable race-based discrimination.

The irony of course is that Asian-American jurists are entirely excluded from the nomination conversation just as SCOTUS is about to hear argument on the allegedly anti-Asian admission policies at Harvard/UNC.

[lavarman84]

What's dumb is that the debate even exists. Once he makes his pick, we can talk merits. But the whining about "discrimination" is unbecoming, especially when the two frontrunners are objectively more qualified than the last SCOTUS appointment.

I think the debate is a reasonable one to have (for those who are interested and can engage with one another in good faith; if all you're on TLS for is the exact date you get your $10k raise, read no further...). For example, the applicability of some of the key flash terms is more subjective, and for others it's more objective. I agree that KBJ is more qualified than Kavanaugh, but that's because of my view about what counts as more qualified, in context. Others can reasonably disagree. But that doesn't mean -- because it's orthogonal to -- the claim that KBJ will not have enjoyed a form of race-based discrimination if she's picked (she probably will be). That's just what "discrimination" means.

I'm not saying it's all-things-considered justified or unjustified to pick her, or that she would be undeserving, just that sometimes you have to call a spade a spade. Two things can be true simultaneously: that she's just as (if not more) deserving/qualified than anyone else, and that she got the gig -- over similarly deserving/qualified non-POC persons -- because of favorable race-based discrimination.

First, I want to clarify that I was speaking of Coney Barrett, not Kavanaugh. Second, it really isn't a reasonable debate. The people who are decrying "discrimination" now had nothing to say when Trump appointed 3 SCOTUS justice and 54 circuit judges (57 federal appellate judges in total), none of whom were Black. They certainly didn't speak up when Trump appointed 226 Article III judges, only two of whom were Black women.

When a person only sees "discrimination" when it involves a group that has historically been denied representation finally getting it, they're part of the problem. I could accept the gripe to a degree if these people were actually principled about their opposition to discrimination. But they're not. They were content to remain silent as Trump and his administration denied Black people, and Black women in particular, opportunity. The fact that they have now decided to speak up when Biden is attempting to place the first Black woman on SCOTUS just demonstrates the hollowness of their purported values.

Objectively speaking, KBJ and Leondra Kruger were each more qualified than ACB when Trump nominated her for SCOTUS. There were numerous Black attorneys and judges who were more qualified than white judges appointed to the federal courts by Trump. But they weren't given an opportunity, which is completely consistent with how this country has acted historically. Yet, the people crying "discrimination" now don't even question when a white judge is appointed. They simply assume that person deserves the job, because it's a "meritocracy" when white people come out ahead. And that's why I have little patience for those people.

[Anonymous User]

I'm not saying it's all-things-considered justified or unjustified to pick her, or that she would be undeserving, just that sometimes you have to call a spade a spade. Two things can be true simultaneously: that she's just as (if not more) deserving/qualified than anyone else, and that she got the gig -- over similarly deserving/qualified non-POC persons -- because of favorable race-based discrimination.

The irony of course is that Asian-American jurists are entirely excluded from the nomination conversation just as SCOTUS is about to hear argument on the allegedly anti-Asian admission policies at Harvard/UNC.

If Biden miraculously gets a second nomination, I'm sure Srinivasan would top the list of candidates. Also, does anyone seriously believe that Edward Blum/SFFA is out here trying to eradicate anti-Asian discrimination or advocate for Asians? Because if so, I have a bridge to sell you.

I know there's another thread on this, but I will be curious if Trump/the next Republican president will nominate Thapar (or Lagoa to build on the GOP's growing appeal to Latinos/Bumatay or Ho to really enflame the culture war) vs. going back to white male nominees.

[midwestlaw20]

What's dumb is that the debate even exists. Once he makes his pick, we can talk merits. But the whining about "discrimination" is unbecoming, especially when the two frontrunners are objectively more qualified than the last SCOTUS appointment.

I think the debate is a reasonable one to have (for those who are interested and can engage with one another in good faith; if all you're on TLS for is the exact date you get your $10k raise, read no further...). For example, the applicability of some of the key flash terms is more subjective, and for others it's more objective. I agree that KBJ is more qualified than Kavanaugh, but that's because of my view about what counts as more qualified, in context. Others can reasonably disagree. But that doesn't mean -- because it's orthogonal to -- the claim that KBJ will not have enjoyed a form of race-based discrimination if she's picked (she probably will be). That's just what "discrimination" means.

I'm not saying it's all-things-considered justified or unjustified to pick her, or that she would be undeserving, just that sometimes you have to call a spade a spade. Two things can be true simultaneously: that she's just as (if not more) deserving/qualified than anyone else, and that she got the gig -- over similarly deserving/qualified non-POC persons -- because of favorable race-based discrimination.

First, I want to clarify that I was speaking of Coney Barrett, not Kavanaugh. Second, it really isn't a reasonable debate. The people who are decrying "discrimination" now had nothing to say when Trump appointed 3 SCOTUS justice and 54 circuit judges (57 federal appellate judges in total), none of whom were Black. They certainly didn't speak up when Trump appointed 226 Article III judges, only two of whom were Black women.

When a person only sees "discrimination" when it involves a group that has historically been denied representation finally getting it, they're part of the problem. I could accept the gripe to a degree if these people were actually principled about their opposition to discrimination. But they're not. They were content to remain silent as Trump and his administration denied Black people, and Black women in particular, opportunity. The fact that they have now decided to speak up when Biden is attempting to place the first Black woman on SCOTUS just demonstrates the hollowness of their purported values.

Objectively speaking, KBJ and Leondra Kruger were each more qualified than ACB when Trump nominated her for SCOTUS. There were numerous Black attorneys and judges who were more qualified than white judges appointed to the federal courts by Trump. But they weren't given an opportunity, which is completely consistent with how this country has acted historically. Yet, the people crying "discrimination" now don't even question when a white judge is appointed. They simply assume that person deserves the job, because it's a "meritocracy" when white people come out ahead. And that's why I have little patience for those people.

Couldn't have said it better myself - I would add that these are the same people who supported Mizelle and Rushing, so there's no need to even engage with them or take them remotely seriously.

[Anonymous User]

You can argue that affirmative action is necessary because history. But it's pretty silly to say that a republican president failing to nominate enough black judges is because racism. There's only so many Clarence Thomas's around.

[Anonymous User]

To take this back to clerkships, how do we think this'll impact this cycle?

[JorgeMichael]

To take this back to clerkships, how do we think this'll impact this cycle?

There's no way of knowing until a nominee is named. It will almost assuredly be KBJ, and those clerks may get to go up to SCOTUS. Nothing changes for everyone else.

[Anonymous User]

To take this back to clerkships, how do we think this'll impact this cycle?

There's no way of knowing until a nominee is named. It will almost assuredly be KBJ, and those clerks may get to go up to SCOTUS. Nothing changes for everyone else.

If it is KBJ, won't the clerks she's already hired have to find a spot before they go up to SCOTUS? (I believe she's hired up until 2024.) And what are the chances that all 8+ of those future clerks get elevated to SCOTUS eventually?

[lavarman84]

You can argue that affirmative action is necessary because history. But it's pretty silly to say that a republican president failing to nominate enough black judges is because racism. There's only so many Clarence Thomas's around.

Ah yes, discrimination is okay as long as you have a pretext to hide behind. Thanks, Anon.

[Anonymous User]

You can argue that affirmative action is necessary because history. But it's pretty silly to say that a republican president failing to nominate enough black judges is because racism. There's only so many Clarence Thomas's around.

Ah yes, discrimination is okay as long as you have a pretext to hide behind. Thanks, Anon.

I think they were making a point about numbers. There just arent a ton of black FedSoc-stamped attorneys.

[nixy]

I wonder why that could be??

[Leif Erikson]

You can argue that affirmative action is necessary because history. But it's pretty silly to say that a republican president failing to nominate enough black judges is because racism. There's only so many Clarence Thomas's around.

wut

[Anonymous User]

To take this back to clerkships, how do we think this'll impact this cycle?

Maybe her Fall 2021 clerks will just go to SCOTUS with her if they weren't hired by one of the others? She was already hiring feeder-caliber clerks, I think.

[Anonymous User]

If Biden miraculously gets a second nomination, I'm sure Srinivasan would top the list of candidates.

I know there's another thread on this, but I will be curious if Trump/the next Republican president will nominate Thapar (or Lagoa to build on the GOP's growing appeal to Latinos/Bumatay or Ho to really enflame the culture war) vs. going back to white male nominees.

On the first part of this - I doubt it. Right now is already about as late in the day as is acceptable for a SCOTUS nom these days, since Srinivasan is a few weeks from turning 55. (This is also why I think Childs, who will soon turn 56, is not really a serious candidate and it's going to be KBJ vs. Kruger.) One underrated political benefit to Biden of getting KBJ on SCOTUS is that he then has a real opportunity to fill her DC Circuit seat with someone who could be in the Sotomayor-replacement waiting room for, say, 2026 if Biden is still POTUS and Dems hold the Senate then.

On the second part - I think that you're right because the next GOP president will be savvy enough to understand the political benefit of doing so while still getting a reliable FedSoc vote on the court.

[lavarman84]

You can argue that affirmative action is necessary because history. But it's pretty silly to say that a republican president failing to nominate enough black judges is because racism. There's only so many Clarence Thomas's around.

Ah yes, discrimination is okay as long as you have a pretext to hide behind. Thanks, Anon.

I think they were making a point about numbers. There just arent a ton of black FedSoc-stamped attorneys.

Let's look at some historic data. Here are the percentages of Black federal judges appointed since Reagan (Republican Presidents only):
Trump: 9 out of 226 (3.98%)
Bush: 24 out of 322 (7.45%)
H.W. Bush: 11 out of 187 (5.88%)
Reagan: 7 out of 358 (1.96%)

[Anonymous User]

I wonder why that could be??

The above claim is that black candidates are being discriminated against by the GOP. More likely the reverse, no? Black support for the GOP (and FedSoc) is pretty low. If 4% of trump's appointments were black, then that is probably proof that he sought black candidates. What percent of conservatives, with federal judge credentials, are black? From gallup: "The Democratic candidate for president over the five presidential elections since 2000 has averaged 91% of the Black vote, with 8% on average going to the Republican candidate." If 13% of the population is black, and less than 10% vote GOP, then way less than 4% of the population are both black and conservative. Yes you could control for turnout etc. But the point being - GOP presidents aren't discriminating against black candidates. They love to play the "durrrr, dems are the real racists" game.

[JorgeMichael]

I'm not saying it's all-things-considered justified or unjustified to pick her, or that she would be undeserving, just that sometimes you have to call a spade a spade. Two things can be true simultaneously: that she's just as (if not more) deserving/qualified than anyone else, and that she got the gig -- over similarly deserving/qualified non-POC persons -- because of favorable race-based discrimination.

The irony of course is that Asian-American jurists are entirely excluded from the nomination conversation just as SCOTUS is about to hear argument on the allegedly anti-Asian admission policies at Harvard/UNC.

If Biden miraculously gets a second nomination, I'm sure Srinivasan would top the list of candidates. Also, does anyone seriously believe that Edward Blum/SFFA is out here trying to eradicate anti-Asian discrimination or advocate for Asians? Because if so, I have a bridge to sell you.

I know there's another thread on this, but I will be curious if Trump/the next Republican president will nominate Thapar (or Lagoa to build on the GOP's growing appeal to Latinos/Bumatay or Ho to really enflame the culture war) vs. going back to white male nominees.

There is absolutely no reason to believe that Srinivasan (or any Asian-American) would be on Biden's short list. If he really wanted to at least consider an Asian-American for SCOTUS, he would not have cabined his first (and likely only) SCOTUS nomination to exclude Asian-Americans. As the kids say, if he wanted to, he would.

I don't think you have to believe that Blum/SFFA are trying to "eradicate" anti-Asian discrimination, but the outcome of that litigation could certainly have the effect of lessening the discrimination faced by Asian-Americans. By way of analogy, Planned Parenthood was formed by eugenicists, but the effect of the organization is a net good despite the shitty intentions of its founders. The Harvard/UNC lawsuit similarly is spearheaded by people with shitty intentions, but it may nonetheless vindicate a group whose rights have been violated and who are being actively discriminated against by higher education institutions.

The people decrying the shitty intentions of Blum/SFFA don't really care that Asian-Americans face discrimination by higher education institutions, it's not all that complicated.