CLAY: Joe Biden is going to be appearing in the White House with Stephen Breyer to announce that Stephen Breyer is stepping down, presumably — although it hasn’t been officially, officially announced — at the end of this term in the Supreme Court, which will end right as summer officially begins. So, there will be a Senate Judiciary Committee hearing, and there will be a nominee coming forward soon. This news broke yesterday, and Buck and I discussed the political ramifications of it.
But as I think more and more about this situation — and I know the same is true for you, Buck — as I look at all of the finalists and as I have since heard reechoed the campaign promise that Joe Biden made that he would put a black woman on the Supreme Court if he had an opportunity to do so, Jen Psaki yesterday in the White House confirmed that Joe Biden is going to put a black woman on the Supreme Court. Here is what she said in response to a question about the potential opening. This was yesterday.
PSAKI: I commented on this previously. The president has stated and reiterated his commitment to nominating a black woman to the Supreme Court and certainly stands by that. For today, again, I’m just not going to be able to say anything about any specifics until, of course, Justice Breyer makes any announcement should he decide to make an announcement.
CLAY: So, Buck, here’s what jumps out to me about this — and this is me putting my lawyer hat on. If you are a lawyer, theoretically the highest office to which you can aspire is to be sitting on the Supreme Court. I understand maybe some people want to be the attorney general. But if you want to have a public-facing job, the Supreme Court — one of those nine seats — is the highest level of acumen in the legal profession that you could aspire to.
What Joe Biden is doing is truly unprecedented in a post-Civil Rights era, in a modern era that most of us have grown up in and lived in in the United States. He is saying explicitly, “I am not going to consider 94% of the American public for this job.” He is specifically saying that the 6% of the population that is black women and much smaller percentage of those black women that are theoretically have legal and judicial experience are the entire list from which he will be picking his Supreme Court nominee.
I think, first of all, this is everything that’s wrong with the idea of affirmative action, of diversity and inclusion, of the entire process of selecting people for office, primarily for a couple of reasons here and then I want to get what you think, Buck. First, whoever Biden selects is going to be seen as a quota selection. That’s unfair to her because there are likely 25, 30, 45, 50 people, we know — a list substantial — of people who would be eligible to be the next Supreme Court justice.
Some of those people would be black women. If your list is from across the entire landscape of judicial potential nominees, then people don’t look at it and say, “Oh, the only reason you got this job is because you’re a black woman.” The way that Joe Biden, Buck, has made this selection makes it such that most people are gonna say that. Second, we have coming up soon a Supreme Court case dealing with the University of North Carolina and Harvard primarily focused on Asian applicants that is going to say, I believe, the use of race to make decisions as it pertains to college admissions is wrong. Here we have a clear quota being applied by Joe Biden. This is wrong.
BUCK: You may have Joe Biden’s one and only appointment to the Supreme Court on unconstitutional and illegal principles, really, and when you think about it, especially if the Supreme Court ruling is — as I think you are correct — that you can’t actually make distinctions about race and admissions in hiring and any of these things. The whole system — and anybody who’s gone to college, well, probably the last 30 or 40 years but certainly in the last 20 years has seen the way this is applied is premised upon essentially dishonesty, right?
The dishonesty — and this is what goes to the heart of the Harvard case is, “We have this holistic admissions process. We look at all these different factors.” But that’s actually not true. That’s kind of the lie. It’s kind of like when people are applying for a country club and everyone says, “Well, hold on a second. You don’t allow people of this religion or this race in this country club,” and they say, “Oh, there are so many factors. We’re not discriminating against people.”
Hold on a second. Are you or are you not, right? You can pretend that it’s all so vague and complicated, but what’s the end result? The end result at places like Harvard (and name an elite school across the country) is that there are some people of certain racial background who get a substantial advantage — and this is proven in the numbers — based upon skin color. It’s flatly not equal protection under the law, unconstitutional, and even the Supreme Court decision that you mentioned yesterday Grutter v. Bollinger, I think it was Sandra Day O’Connor, right, “We won’t need this in 25 years.”
CLAY: That’s what she said.
BUCK: Yeah. That’s absurd. Think about a constitutional right where the Supreme Court declares there’s an expiration date, which is exactly what they did.
BUCK: That’s just policy from the bench. That’s just legislating from the bench. On the notion of Biden announcing this, it took a little bit of processing. Remember we broke this on the air together, Clay, and then I went home and said, “Hold on a second. How is this…? If Biden went on TV and said, ‘Hey, I got this great property in Delaware. I’m only going to rent it out to Asian-Americans because I’m upset about AAPI discrimination’ or whatever, people would say, ‘You can’t do that. That’s illegal.'”
If you were running a company and said, “I’m only going to hire an Asian female CEO because I want to make a statement,” people would say that’s clear discrimination and illegal. So what’s the way that they actually go about this? They say, “Well, we’re not gonna make it that explicit. We’re gonna have stealth quota,” is what I call it. Clay, we all see what’s going on here — and you’re totally right, by the way. It undermines the nominee, because obviously there are brilliant black female jurists who could completely take this role, take this job. But why create this perception that they essentially got an affirmative action assistance in the process, right? It’s ’cause it’s explicit quid pro quo for Biden politically.
CLAY: He’s undercutting the legitimacy of his own pick by saying, “I’m only going to consider people of this particular race and this particular gender,” and I want to a fairly high-end law school. I graduated from Vanderbilt — a top 15/top 20 law school — and what I found interesting when I was there, Buck. I graduated, what, 2004, so it’s been over 20 years ago. But as I said yesterday, those affirmative action cases came town while I was a student at Vanderbilt law school…
Vanderbilt law school was an incredibly diverse place such that when we would do our on-campus interviews, I remember a lot of the people that would interview — it was not surprising, high-end lawyers at that time — were a lot of old white guys, right? They would come in; they had these little rooms. He would go in and I remember there being conversations about in those firms they would say, “Oh, we need a lot more female attorneys,” and what I found to be so interesting — and this is my generation — there were more women in my law school class at Vanderbilt than there were men.
That was a seismic shift in terms of the legal profession. I believe that is consistent now across all of the legal profession, right, in terms of law schools? I think more women go to law school now than men and women are graduating — I think we talked about this on the show a while back, Buck — at a rate of around 60% of all college degrees now are being earned by women in the United States. Men have fallen down to around 40%. Those numbers are roughly accurate.
What I’m getting at is the idea that you would have to establish a quota based on this generation — and I’m counting myself at 42 as a generation that would include people up to the ages of 52, 55, ages like that where the Supreme Court era is being considered. It is totally without merit to say you have to only pick someone based on their race and gender because, as I said, there are many black women who are eminently qualified to sit on the Supreme Court. You are essentially saying that they aren’t able to compete with other jurists when you say, “I’m only going to pick a black woman.” You’re not allowing them to compete head-to-head with all the other people of different races and genders out there.
BUCK: This is what Clarence Thomas has referred to, including in his own autobiography. Clarence Thomas refers to how the left actually undermines a lot of high achieving minorities with their political pandering and with their desire to pat themselves, meaning white liberals on the back, for, “Oh, look at us! We’re so good. We are pushing for more diversity and inclusion all the time!”
So that’s one issue of this, and then also in the context of how it’s playing out in the courts. It is fascinating, by the way, because I do think you’re gonna have someone who was appointed with the explicit promise of their skin color must be a certain thing, their gender must be a certain thing, and then it’s likely the Supreme Court will soon thereafter by a 6-3 or maybe a 5-4 decision saying, “You can’t do that. That’s actually unconstitutional.”
Beyond that, though, how do you explain…? I went a scholarship school here in New York City, Clay, where everybody went on the full ride in high school. It’s a unique place. Don’t hate it because of Fauci, everybody. There’s good things going on there nonetheless, ’cause he’s an alumnus. Whatever. The reality of the student body there was the a lot of first generation immigrants, and I just know ’cause I had classmates who were brilliant who were first generation Vietnamese immigrants.
We had a lot of Korean immigrants. Why is it that when they’re applying to colleges and their parents speak no English, they come here with nothing in their pocket, they’re told, “You get lesser treatment by the Harvard admissions office than the son of the ambassador of Botswana to the United States, who gets chauffeured to school every day in Rolls-Royce”? That is the reality of the modern admissions system because that individual — again, assume we’re talking about somebody who is black. That individual is given the equivalent of 200 or 300 points on the SAT; the Asian applicant, Asian-American applicant has about 150 points reduction. It’s gross.
CLAY: And we need to talk about this more in the context of the UNC and Harvard decision that’s gonna be before the Supreme Court. But, again, the element here that I think is wildly worthy of discussion is how much — and I don’t know how much the left wing is even gonna touch this, but how much — Joe Biden is delegitimizing his own selection by already having said, “I’m only going to consider 6% of the American population.”
When you say 94% of Americans — that’s everyone who is not a black woman — are not eligible to be my nominee, how is it, Buck, that in any way this person — whoever they may be — is going to be given a fair shake here, because a huge percentage of the American population is going to look at that selection and saying, “The only reason you were picked is because you’re a black woman, because Joe Biden specifically said he would only pick a black woman.” That’s why quotas are so rejected under the constitutional law, because of all the delegitimizing factors so he had with quotas. And I gotta say, John Roberts got this 100% right back in 2003 or ‘4, whatever it was, when he said the way to stop discriminating on race is to stop discriminating on the basis of race.
BUCK: I think it was Alito who had a line about — I don’t think it was Scalia, but again correct me, Clay, if I’m wrong on this one — what we’re talking about now is a racial entitlement state the left has created. That was a line from one of the Supreme Court justices in the decision on this matter. We have a racial entitlement state where some groups are given elevation at the expense of other groups because of historical oppression or representation or whatever the case may be. That is flatly unconstitutional.
CLAY: Not only that, to your point earlier, it also presumes that that person is not able to have success on their own. It undercuts the entire element of the meritocracy, and there are certainly many people who prove that the meritocracy works of all different races every single day. As I’ve said on this show for a long time, the highest earning people in America today are Asian men. If this were a fundamentally white supremacist country, that would be impossible.