CLAY: Joe Biden is going to be appearing in the White House with Stephen Breyer to announce that Stephen Breyer is stepping down, presumably — although it hasn’t been officially, officially announced — at the end of this term in the Supreme Court, which will end right as summer officially begins. So, there will be a Senate Judiciary Committee hearing, and there will be a nominee coming forward soon. This news broke yesterday, and Buck and I discussed the political ramifications of it.
But as I think more and more about this situation — and I know the same is true for you, Buck — as I look at all of the finalists and as I have since heard reechoed the campaign promise that Joe Biden made that he would put a black woman on the Supreme Court if he had an opportunity to do so, Jen Psaki yesterday in the White House confirmed that Joe Biden is going to put a black woman on the Supreme Court. Here is what she said in response to a question about the potential opening. This was yesterday.
PSAKI: I commented on this previously. The president has stated and reiterated his commitment to nominating a black woman to the Supreme Court and certainly stands by that. For today, again, I’m just not going to be able to say anything about any specifics until, of course, Justice Breyer makes any announcement should he decide to make an announcement.
CLAY: So, Buck, here’s what jumps out to me about this — and this is me putting my lawyer hat on. If you are a lawyer, theoretically the highest office to which you can aspire is to be sitting on the Supreme Court. I understand maybe some people want to be the attorney general. But if you want to have a public-facing job, the Supreme Court — one of those nine seats — is the highest level of acumen in the legal profession that you could aspire to.
I think, first of all, this is everything that’s wrong with the idea of affirmative action, of diversity and inclusion, of the entire process of selecting people for office, primarily for a couple of reasons here and then I want to get what you think, Buck. First, whoever Biden selects is going to be seen as a quota selection. That’s unfair to her because there are likely 25, 30, 45, 50 people, we know — a list substantial — of people who would be eligible to be the next Supreme Court justice.
Some of those people would be black women. If your list is from across the entire landscape of judicial potential nominees, then people don’t look at it and say, “Oh, the only reason you got this job is because you’re a black woman.” The way that Joe Biden, Buck, has made this selection makes it such that most people are gonna say that. Second, we have coming up soon a Supreme Court case dealing with the University of North Carolina and Harvard primarily focused on Asian applicants that is going to say, I believe, the use of race to make decisions as it pertains to college admissions is wrong. Here we have a clear quota being applied by Joe Biden. This is wrong.
BUCK: You may have Joe Biden’s one and only appointment to the Supreme Court on unconstitutional and illegal principles, really, and when you think about it, especially if the Supreme Court ruling is — as I think you are correct — that you can’t actually make distinctions about race and admissions in hiring and any of these things. The whole system — and anybody who’s gone to college, well, probably the last 30 or 40 years but certainly in the last 20 years has seen the way this is applied is premised upon essentially dishonesty, right?
The dishonesty — and this is what goes to the heart of the Harvard case is, “We have this holistic admissions process. We look at all these different factors.” But that’s actually not true. That’s kind of the lie. It’s kind of like when people are applying for a country club and everyone says, “Well, hold on a second. You don’t allow people of this religion or this race in this country club,” and they say, “Oh, there are so many factors. We’re not discriminating against people.”
Hold on a second. Are you or are you not, right? You can pretend that it’s all so vague and complicated, but what’s the end result? The end result at places like Harvard (and name an elite school across the country) is that there are some people of certain racial background who get a substantial advantage — and this is proven in the numbers — based upon skin color. It’s flatly not equal protection under the law, unconstitutional, and even the Supreme Court decision that you mentioned yesterday Grutter v. Bollinger, I think it was Sandra Day O’Connor, right, “We won’t need this in 25 years.”
CLAY: That’s what she said.
BUCK: Yeah. That’s absurd. Think about a constitutional right where the Supreme Court declares there’s an expiration date, which is exactly what they did.
CLAY: True.
If you were running a company and said, “I’m only going to hire an Asian female CEO because I want to make a statement,” people would say that’s clear discrimination and illegal. So what’s the way that they actually go about this? They say, “Well, we’re not gonna make it that explicit. We’re gonna have stealth quota,” is what I call it. Clay, we all see what’s going on here — and you’re totally right, by the way. It undermines the nominee, because obviously there are brilliant black female jurists who could completely take this role, take this job. But why create this perception that they essentially got an affirmative action assistance in the process, right? It’s ’cause it’s explicit quid pro quo for Biden politically.
CLAY: He’s undercutting the legitimacy of his own pick by saying, “I’m only going to consider people of this particular race and this particular gender,” and I want to a fairly high-end law school. I graduated from Vanderbilt — a top 15/top 20 law school — and what I found interesting when I was there, Buck. I graduated, what, 2004, so it’s been over 20 years ago. But as I said yesterday, those affirmative action cases came town while I was a student at Vanderbilt law school…
Vanderbilt law school was an incredibly diverse place such that when we would do our on-campus interviews, I remember a lot of the people that would interview — it was not surprising, high-end lawyers at that time — were a lot of old white guys, right? They would come in; they had these little rooms. He would go in and I remember there being conversations about in those firms they would say, “Oh, we need a lot more female attorneys,” and what I found to be so interesting — and this is my generation — there were more women in my law school class at Vanderbilt than there were men.
That was a seismic shift in terms of the legal profession. I believe that is consistent now across all of the legal profession, right, in terms of law schools? I think more women go to law school now than men and women are graduating — I think we talked about this on the show a while back, Buck — at a rate of around 60% of all college degrees now are being earned by women in the United States. Men have fallen down to around 40%. Those numbers are roughly accurate.
BUCK: This is what Clarence Thomas has referred to, including in his own autobiography. Clarence Thomas refers to how the left actually undermines a lot of high achieving minorities with their political pandering and with their desire to pat themselves, meaning white liberals on the back, for, “Oh, look at us! We’re so good. We are pushing for more diversity and inclusion all the time!”
So that’s one issue of this, and then also in the context of how it’s playing out in the courts. It is fascinating, by the way, because I do think you’re gonna have someone who was appointed with the explicit promise of their skin color must be a certain thing, their gender must be a certain thing, and then it’s likely the Supreme Court will soon thereafter by a 6-3 or maybe a 5-4 decision saying, “You can’t do that. That’s actually unconstitutional.”
Beyond that, though, how do you explain…? I went a scholarship school here in New York City, Clay, where everybody went on the full ride in high school. It’s a unique place. Don’t hate it because of Fauci, everybody. There’s good things going on there nonetheless, ’cause he’s an alumnus. Whatever. The reality of the student body there was the a lot of first generation immigrants, and I just know ’cause I had classmates who were brilliant who were first generation Vietnamese immigrants.
We had a lot of Korean immigrants. Why is it that when they’re applying to colleges and their parents speak no English, they come here with nothing in their pocket, they’re told, “You get lesser treatment by the Harvard admissions office than the son of the ambassador of Botswana to the United States, who gets chauffeured to school every day in Rolls-Royce”? That is the reality of the modern admissions system because that individual — again, assume we’re talking about somebody who is black. That individual is given the equivalent of 200 or 300 points on the SAT; the Asian applicant, Asian-American applicant has about 150 points reduction. It’s gross.
CLAY: And we need to talk about this more in the context of the UNC and Harvard decision that’s gonna be before the Supreme Court. But, again, the element here that I think is wildly worthy of discussion is how much — and I don’t know how much the left wing is even gonna touch this, but how much — Joe Biden is delegitimizing his own selection by already having said, “I’m only going to consider 6% of the American population.”
When you say 94% of Americans — that’s everyone who is not a black woman — are not eligible to be my nominee, how is it, Buck, that in any way this person — whoever they may be — is going to be given a fair shake here, because a huge percentage of the American population is going to look at that selection and saying, “The only reason you were picked is because you’re a black woman, because Joe Biden specifically said he would only pick a black woman.” That’s why quotas are so rejected under the constitutional law, because of all the delegitimizing factors so he had with quotas. And I gotta say, John Roberts got this 100% right back in 2003 or ‘4, whatever it was, when he said the way to stop discriminating on race is to stop discriminating on the basis of race.
CLAY: Not only that, to your point earlier, it also presumes that that person is not able to have success on their own. It undercuts the entire element of the meritocracy, and there are certainly many people who prove that the meritocracy works of all different races every single day. As I’ve said on this show for a long time, the highest earning people in America today are Asian men. If this were a fundamentally white supremacist country, that would be impossible.
BREAK TRANSCRIPT
BIDEN: (haltingly) The person (pause) I will nominate (pause) will be someone of extraordinary qualifications, character, experience, and integrity. And that person will be the first black woman ever nominated to the United States Supreme Court.
CROWD: (silence)
BIDEN: It’s long overdue, in my opinion.
BUCK: Welcome back to the Clay and Buck show. There you just had Biden during his press conference where sitting-but-soon-to-be-retired Justice Breyer was also appearing alongside him and Biden making quite explicit that it will be a black woman that he appoints to the Supreme Court. This is a clear instance of racial preference in a hiring decision. I mean, if you think about…
Put aside that this is the president and a Supreme Court seat. Imagine if this was a CEO of a company and imagine we will only hire this gender and this race for the following role. That would be a problem. I mean, I’m not an expert in employment discrimination law, but I know that you can’t do that. I also know that you can’t only rent your home to people of a certain gender or race.
You can’t tell people that only a certain gender or race will go to — well, gender, maybe. For school purposes is different, but for hiring purposes, obviously, it’s quite different. And, I mean, Clay, now they’re trying to say that this is gonna be a huge moment for Democrats. Here’s Jim Messina. He’s a Democrat strategist, I think, saying this could change the whole makeup of the midterms.
MESSINA: For the next month, you’re gonna be asking the White House about who they’re thinking about the Supreme Court.
JOHN: Mmm-hmm!
MESSINA: You’re not gonna be talking about timing on Build Back Better. You’re not gonna be talking about polling. We are gonna be in this national thrall about who’s gonna be the next Supreme Court pick. Um, and it just comes at a perfect time on that side. On the other side, this pick is gonna intensely political in part because of abortion. As you said earlier, John, talked about the Supreme Court’s likely gonna rule on some version of rolling back Roe v. Wade in June —
JOHN: Mmm-hmm!
MESSINA: — then you have this pick. I mean, we are gonna go straight to the politics of the Supreme Court in a way that it fundamentally has the potential to change the midterm elections!
BUCK: I think he’s really great overstating this, actually. He’s a Democrat. Clay, first of all, the Supreme Court decision’s gonna come down as we both he know before this pick, before this person’s confirmed so they won’t be involved in that. There will be some politics behind this, but you’ve got an extreme lib with Breyer who they’re going to replace with, in terms of politics, an extreme lib. It doesn’t change the makeup of the court. Sso I actually don’t think this is gonna be that big of a topic. It’s a Supreme Court nomination. People are gonna talk about, we’re gonna talk about it. But this is not like the Kavanaugh brawl. No way.
But the idea that this is going to be, in my opinion, in some way a transformative event for the Biden presidency is totally laughably absurd. Again, for Biden to explicitly say, “I’m going to put a black woman on the Supreme Court before he even announces who that black woman is going to be,” is, frankly, without precedent, that I can remember at any kind of…
Biden kind of did this before when he said, “I’m going to pick a woman to be my running mate,” but at least he said a woman. Right? They’re still 50% of the American population that you could theoretically be considering. When you pick a gender and a race, you are automatically isolating that number in a substantial way. For instance, Buck, imagine the reaction if Donald Trump, when Anthony Kennedy had stepped down, had said, “I’m going to pick a white man to replace Anthony Kennedy.”
People would have lost their minds. People would have been rioting in the streets if Donald Trump had said, “I’m going to pick a specific gender and a specific race to replace this justice.” That’s exactly what Biden did, except he said, “black woman,” and the left wing is not aware… Again, if you apply the logic and you change the race and it is racist, it’s still racist, right? (laughing)
And this is where we look at the way that American cultural institutions have swung, and this is why I think the Supreme Court case in the University of North Carolina and Harvard could be so significant. And I think it’s also why the fact that Asians are being discriminated against now also becomes significant. When you pick someone because of their race or gender, that is sexism and racism. Even if you’re trying to do it to redress some form of historical wrong, it doesn’t mean it’s not racist and sexist.
BUCK: There’s also a fundamental philosophical difference between the way the left clearly views people and individuals and the way that conservatives and people on the right do in this country. We reject that someone’s gender or race is in any way indicative of determining, has anything to do with their sense of the Constitution, justice, the law, ethics, morality. We don’t…
It is an anti-conservative position to say, “I’ve looked at someone, I know their gender; I know their skin color. So I, at some level, think I understand what they believe, what they think as a human being.” The left, of course, openly embraces this notion. We saw that or we heard that with the women of The View — not that anyone should go to them for philosophy, knowledge, or anything else. But them saying that there’s a betrayal, that Amy Coney Barrett has betrayed or that Justice Thomas has betrayed either their gender or their race in this context.
This goes to a very core belief that we on the right, we conservatives think of ourselves as about individuals, as human beings who get to determine what they think, what they believe, how they choose to live their lives and want to be members of the American family without in any way their gender or skin color determining those beliefs. And I think that’s an important separation here.
We reject this notion that because you are Asian, because you are black or white or anything, you should think the following or you should believe the following. And same thing, obviously, with gender, especially on the political issues we’re talking about, right? I mean it’s absurd, really, when you get down to it, and it’s actually quite demeaning and the left’s position — and Justice Thomas would agree. He would say it’s demeaning.
I’m much more interested in the individual than I am in what the individual is born into, and so this represents the full culmination of left-wing identity politics thought, because, Buck — you can correct me if I’m wrong — I don’t think we’ve ever had a person in a position of authority like Joe Biden explicitly say, “II’m picking someone of a specific gender and a specific race and that’s the only people that I’m considering for this job.”
BUCK: No. But I will say — I think you’re right, that’s never happened before — at some level, though, the honesty, while it’s wrong, the honesty that comes out here from the left is somewhat refreshing. Because the game they play in college admission, the game they play in all the diversity and inclusion centers and all the stuff in H.R. and everything else is, “Well, we’re really just looking at one of many factors.” Oh, one of many factors?
No, it’s actually often used as a determining factor, and if you talk to — remember we discussed this in Hollywood now, increasingly the left — ’cause they’re all these white liberals, a lot of white liberal guys who think, “Oh, you know, I’m cool. I’m left wing. Everything’s great,” and they’re told, “No, we’re actually only hiring a person of color for this writing job.”
And even some of the libs are saying, “Well, hold on a second. That’s not the way this is supposed to go,” because it’s just… What was hidden before and what they were dishonest about before, the holistic approach… It shouldn’t be a factor at all, is the point. And what happens when they allow it to be any factor is they abuse it, and they’re doing quotas. They’re just stealth quotas.
CLAY: Well, again, to me this is ultimately an attack. Whoever is nominated for the Supreme Court, it represents a culmination of their life’s work. It’s an incredible level of accomplishment. Whoever Joe Biden nominates now, a huge percentage of the American population is going to say, “That person didn’t deserve it. The only reason they got it is because they’re a black woman and he specifically restricted his search to black women.”
Whereas he could have come out and put out a list like Donald Trump did of 20 or 30 or 40 or 50 different potential nominees of all different races and genders and then if he selects whoever he does, people can say, “Okay. That person was the best in Joe Biden’s estimation for this job.” Instead, he’s undercut that career accomplishment for whoever gets this by his quota system.
The Kentucky senator shares his thoughts on finally bringing some accountability to government.
The future White House press secretary discusses the end of the Georgia case, the CR…
Watch Clay and Buck discuss the new details emerging about the extent of the cover-up…
The newest C&B Podcast Network host on the crazy spending in Washington and a political…
Watch Clay and Buck discuss the ramifications of Disney's settlement with Donald Trump.