In the absence of having an identifiable Biden Supreme Court nominee to attack, conservatives are continuing to complain that the nominee will be a Black woman. Their reasoning is that the Supreme Court pick should be the most qualified jurist regardless of race or gender — this despite the fact that Supreme Court choices have always been made with identity in mind, most recently the selection of Amy Coney Barrett, whom conservatives openly advocated for specifically because she is young and female.
The most inadvertently hilarious version of this argument comes from Manhattan Institute scholar Heather Mac Donald. The damning evidence that Biden is undermining qualifications, per Mac Donald, is that it is cutting the American Bar Association out of the preclearance process.
The hilarious part comes when Mac Donald concedes Republicans already did this years ago — but it’s okay, because Republicans have good reasons to ignore the ABA:
The White House Counsel’s Office disclosed in February 2021 that it would not involve the ABA in preclearance. Republican presidents have also cut the ABA out of the confidential vetting process in recent years, on the ground that the association was biased against conservatives. That charge was plausible. [Emphasis mine] The reason that the Biden administration gave for sidestepping the ABA, however, strained credulity: The ABA was insufficiently attuned to the need for “diversity” on the bench. Allowing the ABA to vet candidates was incompatible with the “diversification of the judiciary,” explained a member of the White House Counsel’s Office.
So when Republicans pick jurists without using the ABA, it’s a justifiable response to liberal bias, but when Democrats do it, it’s evidence they don’t care about qualifications.
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Mac Donald proceeds to argue that nominating a Black woman compromises quality merely by limiting the sample size. “An estimated 2 percent of the nation’s lawyers are black females,” she argues. “The introduction of any extraneous criterion for a job search lowers the average caliber of the potential applicant pool, by putting top contenders who do not possess the irrelevant trait out of reach.”
Okay, but you know another group that’s severely underrepresented among elite lawyers? Conservative Republicans.
Last year, Adam Bonica explained that the severe dearth of conservatives at elite law schools requires giving those students massive preferences. Bonica estimated that 80–90 percent of law students at elite law schools identify as Democrats, and as a result, conservative students are 10–12 times more likely to become a federal judge. Bonica dryly noted that this disparity poses “a problem for conservatives if they want to talk about electing qualified judges.”
Their solution is to talk about qualifications anyway, and ignore the obvious reality that conservative lawyers as a class are massive beneficiaries of hiring preferences.
Since Democrats have tried (and, for the time being, failed) to end the legislative filibuster, Republicans have taken to labeling them as “hypocrites” every time they continue using the existing rules. Their principle here is that, if Democrats disapprove of the existing rules, intellectual consistency requires them to allow Republican bills to pass with 50 votes while Democratic bills need 60.
There is, of course, no serious ethical principle to support this.
Now they’re extending the same logic to gerrymandering. Democrats have argued that gerrymandering has all kinds of noxious effects and tried to require House districts to be drawn up by nonpartisan commissions. Republicans have opposed and blocked such a reform. And now they are arguing that — you guessed it — Democrats should abstain from gerrymandering even as Republicans continue:
Obviously, Republicans would enjoy a system in which red-state maps are designed to produce the most Republican seats, while blue-state maps are designed to give both parties a fair chance. What’s mine in mine, what’s yours is ours is not a principle, though. And if Democrats are ever going to get Republicans onboard with gerrymandering reform, the first step is to eliminate the Republican Party’s interest in preserving the status quo.
The welfare-state ratchet is a dynamic under which social programs, once enacted, become popular and difficult to dislodge. This gives the left a significant strategic advantage over the right, since Democratic-controlled governments are often able to expand social benefits, but Republican-controlled governments are rarely able to scale them back. (Case in point: Donald Trump’s failure to repeal Obamacare.)
Regulations operate a little differently. A Republican president can unilaterally change a regulation, or simply refuse to enforce it. This makes conservative policy much easier to enact through regulatory fiat than legislation.
But there is another kind of ratchet that’s involved with environmental regulations. Namely, companies make investments that need to pay off over a long period of time. A temporary loosening of regulations isn’t much of an inducement.
Yesterday, for instance, the Biden administration announced it is putting back into place the strict pollution rules on power plants that President Obama wrote and Trump repealed. These kinds of regulations predictably seesaw between strict rules under Democratic presidents and lax rules under Republican ones.
But if you’re paying the cost to clean up your plant to comply with Democratic pollution standards, there’s not much gain in junking that equipment when a Republican takes office. Likewise, decisions about investments on the scale of a coal plant require assumptions about regulations in the future. You need to plan for the strictest regulatory regimen you’ll be operating under. It’s not much good to run a plant that can only operate under Republican administrations.
Environmental regulations have grown extremely partisan over the last few decades. (It was a different story in the 1970s, when Nixon created the Environmental Protection Agency with near-unanimous support in Congress.) But the effect of the regulatory seesaw is far from even. Democratic regulatory tightening is more powerful than Republican deregulation.
The conservative movement has a long-standing skepticism of democracy. Since the rise of Donald Trump, that tendency has increasingly taken the form of undisguised longing for authoritarian rule. Hardly a day goes by without some new instance of fascistic rhetoric popping out of the mouth of a right-wing intellectual.
Today we have Josh Hammer:
The culture is rotting, and rather than defeat the left’s arguments in the marketplace of ideas, we need the firm hand of the state to crush it. If there’s space between that concept and fascism, it’s pretty small.
Jewish space lasers aren’t real. But there may be Jewish ground lasers:
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