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U.S. Supreme Court building. Photo: Joe Ravi, licensed under CC-BY-SA 3.0/.

I&I/TIPP Poll: Americans Don’t Agree Biden Supreme Court Pick Must Be One Gender, One Race

With the planned retirement of Supreme Court Justice Stephen Breyer, President Joe Biden will soon get a chance to name a replacement. Biden has vowed his choice will be an African-American woman. Do Americans support making race and gender the main basis for selection?

The answer is “no.”

Specifically, I&I/TIPP asked Americans the following: “With the retirement of Supreme Court Justice Stephen Breyer, President Biden will soon get to select a replacement. How important is it that President Biden choose a Black woman?”

By 47% to 43%, a plurality of Americans said those criteria were “not important.” Of those, 30% said they were “not at all important,” making that the largest response of all. Another 18% said it was “not very important.” And 10% said they were not sure.

Of the 43% who did think it was important, just 21% said using sex and race as criteria was “very important” and a slightly larger 22% said it was “somewhat important.”

So, by a 3-to-2 margin, potential voters said it was “not at all” important to select a black woman for the high court, versus those who said it was “very important.”

Predictably, demographics and political affiliation defined much of the response.

Race of the respondent was a major separation point. Among White respondents, only 33% said having a Black woman was important. A strong majority of 56% said it was not important.

But both Blacks and Hispanics disagreed. As a group, 60% of them felt making gender and race central to the selection process was important, versus just 32% who said it wasn’t.

As for political party affiliation, that too showed striking differences.

Among Democrats, 68% said naming a black woman to the court was important, while 26% believed it shouldn’t be important.

Meanwhile, solid majorities of Republicans (73%) and independents (54%) opined that selecting an African-American female wasn’t important, compared to just 17% of those in the GOP and 34% of independents that felt it was.

One intriguing difference emerged from looking at women’s responses. Single women, by 47% to 40%, felt that the sex and race of the next court appointee was important. Married women went the other way, with only 37% saying it was important and 50% saying it wasn’t.

Of note too is the sharp cleavage in opinion by age of the respondent. Younger Americans tend to believe use of gender and race are acceptable in selecting; older Americans, not so much.

Among the youngest cohort, age 18-24, 55% think naming a black woman to the court is important, versus 37% who think it isn’t. And by 47% to 40%, those age 25-44 agree. But only 36% of the 45-64 age group think it’s important, while 53% think it isn’t. Among those over 65, it’s 39% to 55%.

What does all this mean for the upcoming confirmation battle? In three words, more political conflict.

The I&I/TIPP Poll is no statistical outlier. Similar concerns about using race, gender or any other non-merit-based qualification for judicial office have popped up in other polls by Rasmussen and ABC/Ipsos.

Biden no doubt has political regrets about vowing to name a black female to the court, a promise he made back in the spring of 2020, when his primary campaign was foundering.

Biden’s pledge to appoint black woman to the Supreme Court was a quid pro quo for the endorsement of Rep. James Clyburn, the House’s third-ranking Democrat. Within days of that promise, Biden won a number of the crucial Super Tuesday primaries, all but sealing the Democratic nomination.

Clyburn, not shy about reminding the White House about his kingmaking generosity, is openly supporting a single candidate for full elevation to the Supreme Court, U.S. District Judge J. Michelle Childs.  He also pushed Biden to agree to nominate a Black woman as Vice President.

Given the sharp 50-50 current split in the Senate, and the lack of a legal consensus as to whether a sitting vice president can cast the deciding vote in the case of a political appointment, it’s almost certain that there will be a strong political challenge from Republicans.

That’s especially true if the proposed nominee is viewed by conservatives and moderates as an ideological stalking horse for the far-left, rather than being viewed as a serious jurist with a defensible legal philosophy.

“The president must not outsource this important decision to the radical left,” Senate Minority Leader Mitch McConnell said, shortly after Breyer announced his retirement. “The American people deserve a nominee with demonstrated reverence for the written text of our laws and our Constitution.”

Of perhaps greatest concern is that this will be yet another ideological dividing point for Americans already divided on a wide number of issues, including COVID, Woke politics, race, energy policy, inflation, immigration, voting laws, and more.

But it will also no doubt raise uncomfortable issues from Biden’s own controversial past as a senator. During the Senate hearings for Justice Clarence Thomas in the early 1990s, for instance, Biden was criticized by both the right and the left for his treatment of Thomas and, later, Thomas’ accuser, Anita Hill, a black woman.

Biden also filibustered the appointment of Janice Rogers Brown, an African-American woman who happened to be conservative, to the Washington, D.C. Court of Appeals.

With such a checkered history, Biden’s pick will no doubt be second-guessed, even by many Democrats, among whom more than a quarter say it is “not important” to pick a Black woman for the Supreme Court.

Americans are right to wonder: Is the pick about having the most qualified judge possible for the most important legal post in America, or is it merely about his party’s increasingly far-left political ideology?

The data above come from the I&I/TIPP Poll, which was conducted online from Feb. 2-4 and includes responses from 1,355 adults from across the country. The poll has a margin of error of +/- 2.8 percentage points.

As a service to our readers, I&I/TIPP will continue to provide timely and informative data from our monthly polls on this topic and others of major interest. TIPP has earned a reputation for excellence by being the most accurate pollster for the past five presidential elections.

Terry Jones is editor of Issues & Insights. His four decades of journalism experience include serving as national issues editor, economics editor and editorial page editor for Investor’s Business Daily.

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Terry Jones

Terry Jones was part of Investor's Business Daily from its inception in 1983, working in a variety of posts, including reporter, economics correspondent, National Issues editor and economics editor. Most recently, from 1996 to 2019, he served as associate editor of the newspaper and deputy editor and editor of IBD's Issues & Insights. His many media appearances include spots on the Larry Kudlow, Bill O’Reilly, Dennis Miller, Dennis Prager, Michael Medved and Glenn Beck shows. He also served as Free Markets columnist for Townhall Magazine, and as a weekly guest on PJTV’s The Front Page. He holds both bachelor's and master's degrees from UCLA, and is an Abraham Lincoln Fellow at the Claremont Institute

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