The Biden administration is remaking the federal court in a very bad way
The Civil Rights Act of 1964 said that people cannot be discriminated against based on race, color, religion, sex (the binary type), and national origin. Over the years, sexual orientation and gender identity have been added to the list. The data, though, show that, when it comes to appointments to the federal court system, the Biden administration is discriminating like crazy—against White men. What will matter more in the long run, though, is that there’s significant ideological discrimination, too.
Bloomberg Law ran the numbers, and there’s nothing ambiguous about them. (Hat tip: Daniel Greenfield.) Not only has Biden been able to appoint many more judges than Trump could in his first two years (97 to 83), but he’s also been appointing almost entirely women, the majority of whom are minorities:
Of the 97 judges confirmed by the Senate in the last two years, three quarters of them are women, and nearly half of the appointees — including Supreme Court Justice Ketanji Brown Jackson — are women of color.
Ordinarily, this type of statistically provable discrimination in hiring would be actionable at law. But of course, those White men who were passed over have no claim: Biden has an absolute constitutional right to select whomever he wants because Congress cannot amend the Constitution by statute.
Image: Court gavel by Weiss & Paarz. CC BY-SA 2.0.
The real issue, though, is that Biden is appointing activists who believe that, despite being unelected, it’s a judge’s job to reconfigure American law and social values. Skin color diversity is what’s trumpeted in headlines (of course) but what really matters is ideological uniformity, and as to that, there is no diversity at all. Again, from Bloomberg Law:
About one-third of Biden’s confirmed judges have experience as public defenders and a dozen are former civil rights lawyers, according to the liberal group Alliance for Justice.
That means that there are more federal judges who have seen the challenges in the court system for people with low incomes or who have experienced civil-rights or voting-rights violations, said Lisa Cylar Barrett, director of policy at the NAACP Legal Defense Fund.
There you have it: As we’ve seen with Ketanji Brown Jackson, a pedophile-friendly Supreme Court justice, Biden is placing on the bench judges who base their decisions not on the law and the facts but on the relative positions of the prosecutor/plaintiff and the defendant. What will matter will be skin color, wealth, ideology, and victim status.
I say this with certainty because I saw exactly such a case when I was still litigating in San Francisco, a bastion of leftist judges. Under this new regime, to cite just one case on which I worked, if a dishonest minority sues a law-abiding bank, the bank will lose. The same extra-judicial rubric will apply to criminal law, with every federal court starting to look like Chicago or New York—law-and-order out; racial grievances in.
In Deuteronomy 1.13, the first thing that Moses, acting upon God’s instructions, did once the Jews fled Egypt was to appoint judges: “Pick from each of your tribes men who are wise, discerning, and experienced, I will appoint them as your heads.” Nowhere did he specify that any of those traits are tied to race (as in Sonia Sotomayor’s “wise Latina” boast). More importantly, at 1:17, Moses demanded of the magistrates that “You shall not be partial in judgment: hear out low and high alike.”
In his eminently readable The Rational Bible: Deuteronomy: God, Blessings, and Curses, Dennis Prager explains,
It…means that a judge may not give preferential treatment to a famous or wealthy person. The words translated “hear out low and high alike” literally read, “listen to the small person as you listen to the great person.” By definition, justice means equal justice for everyone and that all people have an equal right to be heard. Even the poorest and seemingly unimportant person must have access to the judicial system. The same holds true in the other direction: a judge may not favor a poor man, no matter how wealthy his litigation opponent happens to be (see Exodus 23:3 and Leviticus 19:15).
Nothing indicates, based on past performance, that the people Biden is placing on the federal bench care about justice or are wise and discerning. There’s every reason to believe that they will replicate and extend the profound damage activist courts, from the Supreme Court on down, have inflicted on America for decades. A Kritarchy (rule by unelected judges) has consistently been disastrous for America. Our nation is weakened when activist judges impose top-down solutions without the intermediary legislative process that involves persuading Americans rather than dictating to them.