On Monday, the United States Supreme Court announced it would hear a case challenging race-based admission practices in higher education. On Wednesday, the White House confirmed that President Joe Biden would be committed to nominating a Supreme Court justice using a race-based admission practice and would be choosing a black woman for the court to replace the outgoing justice, Stephen Breyer.
Both announcements center around the choosing of a candidate or nominee based on immutable characteristics to determine their qualifications. This juxtaposition was not lost on conservatives who sounded the alarm on Biden’s race-based nominee process. For example, The Daily Wire’s Matt Walsh pointed out Biden’s decision is most likely “completely illegal.”
“It’s actually completely illegal for a government official to specifically exclude certain races when hiring someone for a position,” Walsh tweeted. “It’s illegal in about ten different ways in fact. Not that any of that matters to Biden or the Left of course.”
It's actually completely illegal for a government official to specifically exclude certain races when hiring someone for a position. It's illegal in about ten different ways in fact. Not that any of that matters to Biden or the Left of course.
— Matt Walsh (@MattWalshBlog) January 26, 2022
Indeed, George Washington University Professor Jonathan Turley wrote in 2020 that Biden’s campaign pledge — now presidential pledge — was patently discriminatory and entirely similar to outlawed affirmative action practices:
Imposing an absolute requirement that a nominee be a particular gender and race is effectively an affirmative action pledge. It is precisely what the Supreme Court already declared to be unconstitutional discrimination. In the 1977 case of Regents of the University of California versus Allan Bakke, the Supreme Court found quota and affirmative action admissions policies based on race to be unconstitutional. While the justices were fractured on the logic, a clear plurality on the bench supported the view that preferring “members of any one group for no reason other than race or ethnic origin is discrimination for its own sake,” adding “this the Constitution forbids.”
The Daily Wire reached out to Alex Deise, an attorney and policy manager at FreedomWorks, to get his take on the matter.
“When Joe Biden’s presidential campaign was struggling, he promised the voters that he would nominate a black woman if there was a vacancy on the Supreme Court,” Deise explained. “Instead of considering merit, qualifications, background, experience, judicial temperament or quality of writing, Biden thought the candidate should be picked solely on the basis of immutable characteristics.”
“In that way, it seems quite fitting that the Biden Administration will likely find itself in the Supreme Court arguing in favor of Harvard and the University of North Carolina as they defend their race-based admissions policies, the same policies Biden has employed here,” Deise continued.
SCOTUS Blog reported that the Supreme Court would hear a case that has the potential to outlaw higher education using race-based admission, even to craft a “diverse” student body:
The Supreme Court on Monday agreed to reconsider the role of race in college admissions. In a brief order, the justices agreed to take up two cases asking them to overrule their landmark 2003 decision in Grutter v. Bollinger, holding that the University of Michigan could consider race as part of its efforts to assemble a diverse student body. The decision to grant review in the two new cases suggests that the court’s conservative majority is poised to do just that.
On Monday, Deise told The Daily Wire that with these two cases, “the Supreme Court has a historic opportunity to eliminate the ability of colleges and universities to explicitly discriminate on the basis of race in their admissions process.”
In the past, Justice Clarence Thomas has deemed such practices as “racial engineering” that has “insidious consequences” for all involved.
“There can be no doubt that the University’s discrimination injures white and Asian applicants who are denied admission because of their race,” Thomas said in 2012 regarding the University of Texas’ use of race in college applications. “But I believe the injury to those admitted under the University’s discriminatory admissions program is even more harmful.”
Regardless of whom Biden chooses, Deise affirmed Thomas’s view of race neutrality and advocated the new justice adopt Thomas’ posturing.
“Hopefully, whoever President Biden nominates to the Court will take the bold and courageous stand that Justice Thomas has, and conclude that the use of race in the college admissions process is unconstitutional because it violates the Equal Protection Clause’s core tenet of race neutrality,” Deise said.