OPINION: This article may contain commentary which reflects the author's opinion.
Harvard Law School professor emeritus Alan Dershowitz said Sunday that President Joe Biden’s decision to limit candidates to replace retiring Supreme Court Justice Stephen Breyer only to black woman may actually be unconstitutional.
“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,” he offered.
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 last week, 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.”
Biden repeated that pledge following news that Breyer would be retiring. But Turley questioned the appropriateness of the promise given the constitutional questions but also given a case the high court currently has before it.
“With the court set to rule on racial preferences in college admissions, it raises the question of whether it is appropriate for a politician to use a criterion that the court itself has found unconstitutional for public educational institutions and unlawful for businesses,” Turley wrote.
While he thinks Biden’s overt use of race and sex to make his SCOTUS pick is not “judicially reviewable,” he said it was also “unnecessary.”
“Mr. Biden could have selected a black woman for the court while maintaining, as universities do, that he would consider all possible candidates on the totality of their records. He wanted to go beyond other candidates and expressly pledge to apply what is by definition a discriminatory threshold criterion,” Turley noted.
As for Dershowitz, he successfully predicted last summer that Breyer would retire this year.
“That will give the president the power to appoint somebody before there’s a new Senate. So, everybody on the left will be happy, and Breyer will be able to say, ‘I didn’t give in to pressure.’ That’s my prediction,” Dershowitz claimed.