Biden’s Criteria for Replacing Stephen Breyer

The announcement of Justice Stephen Breyer’s retirement has whistled the start of that Washington blood sport known as a Supreme Court confirmation. While the filibuster-free process guarantees President Joe Biden that he has the votes to pick anyone acceptable to all Senate Democrats, this fight is different from any in history in one respect. As a candidate, Mr. Biden pledged to select the next justice first and foremost on race and sex.

“I’m looking forward to making sure there’s a black woman on the Supreme Court, to make sure we, in fact, get every representation,” he said in a South Carolina debate. This reportedly helped win him the key endorsement of Rep. Jim Clyburn, the House majority whip.

With the court set to rule on racial preferences in college admissions, it raises the question of whether it is appropriate for a politician to use a criterion that the court itself has found unconstitutional for public educational institutions and unlawful for businesses.