The Sun Bay Paper Page 10 February 18, 2022 - February 24, 2022 Black Woman for SCOTUS: Another Mandate “Black woman” is Biden’s requirement for any candidates to succeed Justice Breyer on the U.S. Supreme Court. That sounds fine, and as expected. So, what’s the issue? Following is some context. In 2003, President Bush nominated Janice Rogers Brown to serve on the D.C. Circuit Court of Appeals, generally considered to be the country’s second most important court. It was understood to be a preliminary step to elevating Brown to the Supreme Court. This republican nominee was Black, and a woman. Joseph Epstein reminded us of something in his February 14 WSJ column: “The man who now promises to appoint a black woman to the Supreme Court……warned in 2005 that if President Bush nominated Judge Janice Rogers Brown, ‘I can assure you that would be a very, very, very difficult fight and she probably would be filibustered……’ They opposed her because of her judicial philosophy……intensified because they especially despised the prospect of a libertarian conservative justice who was a black female.” Then-Senators Biden and Obama repeatedly filibustered Brown’s confirmation. She was eventually seated on the D.C. court, with Biden having voted against her three times. Shortly thereafter, Brown made the short list as a possible replacement for retiring Supreme Court Justice Sandra Day O’Connor. Senator Biden once again declared a nomination of Brown’s would face a filibuster. None of the other conservative “short listers” for O’Conner’s seat were threatened with a filibuster. Only this Black woman, by our current President, who now refers to filibuster as a “relic the Jim Crow era.” Samuel Alito was eventually seated. Our President’s apparent motivation is to guild his legacy, with a dedication to diversity way down his list of priorities. Two events are now in process that many observers won’t connect as being related – a Supreme Court ruling regarding racial considerations in higher education admissions, and Biden’s SCOTUS appointment. The Court ruling will inevitably include debating the applicability of the 1978 “Bakke”reverse discrimination decision. That ruling stated: “Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.” George Washington University Professor Jonathan Turley wrote as early as 2020 that Biden’s campaign pledge seemed to be against the law: “It is precisely what the Supreme Court already declared to be unconstitutional discrimination…in [Bakke], the Supreme Court found quota and affirmative action admissions policies based on race to be unconstitutional.” Given that context, consider the President’s announcement the same day as Justice Breyer’s retirement announcement: “I will nominate…someone with extraordinary qualifications, character, experience, and integrity. And that person will be the first Black woman ever nominated to the United States Supreme Court.” Biden was emphatic in his racial requirement. It was subject to no other contingencies. Continuing with words from the 1978 ruling, “This the Constitution forbids.” Politicians, journalists and even cartoonists must be careful when plying their trade. They shouldn’t mislead their readers because of ignorance of important legal nuances. The problem Biden will face in this nomination has nothing to do with diversity, gender, or anything else other than the hamhanded way it is being handled makes the process unconstitutional - i.e., illegal. South Carolina Democrat Representative Jim Clyburn, House Majority Whip and Congress’ highest’ ranking Black member, has given Biden an opportunity to tiptoe out of this unconstitutional corner. It doesn’t remove the process blunders made but may quiet much of the opposition. Clyburn considers lack of law school diversity more concerning than race. Eight of the nine current Court justices attended either Harvard or Yale law schools, and Clyburn wants the new justice to have a non-Ivy League degree. His preferred candidate is J. Michelle Childs. And he has bipartisan support from Republican South Carolina Senators Lindsey Graham and Tim Scott. Childs, a South Carolina federal judge, is currently under consideration for the D.C. Court of appeals. She has a record of strong bipartisan support, was the first person from her family to attend college and graduated from the University of South Carolina law school. She would be a serious candidate on most bipartisan “short lists.” And she happens to be Black. For me, that’s a smart diversity pick, a unifying pick. myslantonthings.com Steve Bakke, Fort Myers Senate Confirms New FDA Head Despite Opposition The U.S. Senate confirmed a new head of the Food and Drug Administration Tuesday by a narrow vote crossing party lines. The Senate voted 50-46 to confirm Robert Califf, who served in the same role during the Obama administration. The FDA has come under increasing scrutiny for its role in the opioid epidemic and its approval and authorization process for COVID-19 vaccinations. The confirmation came despite public opposition from several Democrats. Sen. Joe Manchin, D-W.V., spoke from the Senate floor about Califf, attacking his record on the opioid epidemic. “In the five years since Dr. Califf was confirmed, more than 400,000 Americans and 5,000 West Virginians have died from drug-related overdose,” Manchin said. “Let’s not beat around the bush. Dr. Califf bears a great deal of responsibility for these deaths. We have insight into how he will lead the agency. Under Dr. Califf’s previous tenure, drug-related overdoses went up. Five years later, they’re up again, and this time at record numbers.” Most Republicans opposed Califf, though enough supported him to get the nomination confirmed. “Dr. Califf is up to the task of leading the FDA as Congress evaluates its human medical product user fee programs and considers their reauthorization,” said Sen. Richard Burr, R-N.C. “He does not believe FDA has a role in evaluating the cost or price of a medical product. Dr. Califf is supportive of increasing competition in the marketplace to help lower the cost of drugs, including through more generic and biosimilar products. He supports clarifying the diagnostic test regulatory landscape with a law that encourages innovation and provides a clear and predictable pathway to market for diagnostic tests. I believe Dr. Califf will build on the successful lessons learned and progress made during the pandemic response over the last two years, and that he will continue to uphold FDA’s gold standard.” Sen. Bernie Sanders, I-Vt., also opposed the nomination, saying he was “disappointed” by the nomination. “I opposed his nomination because I was not convinced that he would stand up to the greed of the pharmaceutical industry, one of the most powerful special interests in Washington,” Sanders said. “In my view, it is unacceptable that the American people pay, by far, the highest prices in the world for prescription drugs. At a time when one in five Americans cannot afford to pay for the medications that have been prescribed to them, we have got to do everything we can to lower the skyrocketing price of prescription drugs. A life-saving drug does no good if a sick patient cannot afford it.” Casey Harper The Center Square
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