OPINION: This article may contain commentary which reflects the author's opinion.
Sen. Ted Cruz, who has argued cases before the U.S. Supreme Court as the onetime solicitor general for Texas, said that President Joe Biden’s vow to only consider a black female to replace retiring Justice Stephen Breyer amounts to racial discrimination and thus may be “illegal.”
In an interview with “Fox News Sunday,” Cruz stated that he believes it was “wrong” for Biden to “discriminate” by claiming he would only consider a black woman as Breyer’s replacement.
“What the president said is that only African American women are eligible for this slot, that 94 percent of Americans are ineligible,” Cruz said.
“The way Biden ought to do it is to say, ‘I’m going to look for the best justice,’ interview a lot of people, and if he happens to nominate a justice who was an African American woman, then great,” he added.
“If Fox News put a posting, we’re looking for a new host for Fox News Sunday and we will only hire an African American woman or a Hispanic man or a Native American woman, that would be illegal,” Cruz continued.
Cruz is not the only legal scholar to speculate that Biden’s declaration may be illegal and unconstitutional.
Late last month, Harvard Law School professor emeritus Alan Dershowitz also said he thought what the president was doing likely qualified as an illegal act.
“I think it may be unconstitutional. If he had said he was going to appoint the first… Muslim to the court, that would be unconstitutional,” Dershowitz told Fox News host Maria Bartiromo.
“As the Constitution, Article 6, specifically provides that no religious test should ever be required. I think the 14th and 19th Amendments also extend that to no racial or gender tests,” he added.
“Nobody should ever be excluded because they don’t fit a racial or gender criteria. There are enormous numbers of qualified black judges who would make great appointees to the Supreme Court,” he continued.
“And I would applaud if the president picked someone who also fit that criteria. But to announce in advance, no whites, no males apply, brings us back to when the Supreme Court was exclusively a white male institution,” said Dershowitz.
In a column posted to his website on Sunday, another constitutional expert, George Washington University law professor Jonathan Turley, noted that the Supreme Court in the past has rejected the exact race-based criteria Biden has pledged to use to select Breyer’s replacement: “[T]his type of exclusionary rule has been found unconstitutional or unlawful in schools or businesses.”
“While there may be legitimate points of distinction with a Court appointment, there is little discussion of why we should use a threshold exclusionary rule for admission to the highest court that the Court would not allow in any admission to a school or business,” Turley wrote.
“It is worth discussing even if one believes that the Court membership is a type of bona fide occupational qualification or if one simply rejects the very premise of the Court’s barring such criteria or quotas in past cases. The benefit of having a diverse Court is obvious but, if we want to use an express exclusionary rule, we should be able to discuss why it is appropriate for the Court and those institutions or businesses barred in past case[s],” he added.
In a column published by The Wall Street Journal earlier in the month, Turley made a similar argument, noting that in order to secure the endorsement of a leading black lawmaker, Rep. James Clyburn of South Carolina, during a contentious Democratic primary, Biden made this pledge: “I’m looking forward to making sure there’s a black woman on the Supreme Court, to make sure we, in fact, get every representation.”