Commentary Politics

Trial Balloons and Hot Air: Don’t Let Biden and Schumer Fool You on ‘Mainstream’ SCOTUS Nominees

Jodi Jacobson

Both Schumer and Biden seem to agree that what we need to replace deceased Supreme Court Justice Antonin Scalia is a "mainstream" nominee for the Court. I call foul.

Read more of our articles on Justice Antonin Scalia’s potential successor here.

Over the last two days, both Sen. Chuck Schumer (D-NY) and Vice President Joe Biden have weighed in on the kind of nominee they think President Obama should recommend to replace deceased Supreme Court Justice Antonin Scalia.

And as things go, it is no accident that these two men, leaders in the Democratic Party with direct access to the president, said basically the same thing within a couple of days of each other. They are either floating trial balloons—testing public reaction—for the White House or trying to influence the president’s decision. Either way, they are using their positions and their access to the media as a way of sending a message.

And either way, I call foul.

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Both Schumer and Biden seem to agree that what we need now is a “mainstream” nominee for the Court.

In an interview on ABC News’ This Week with George Stephanopoulos last Sunday, Schumer, who sits on the Senate Judiciary Committee, said he expects President Obama to nominate a “mainstream” justice, citing the potential to win support of “mainstream Republicans.”

“I think the president, past is prologue, will nominate someone who is mainstream,” Schumer stated. As the New York Times reported:

“When you go right off the bat and say, I don’t care who he nominates, I am going to oppose him — that’s not going to fly,” he said, criticizing the majority leader Mitch McConnell for pledging to block any nominee. “A lot of the mainstream Republicans are going to say, I may not follow this.”

According to the Washington Post, Biden echoed Schumer’s statement in an interview aboard Air Force Two:

“This is a potential gigantic game changer” for the philosophical makeup of the court, Biden said in an interview with The Washington Post and Politico. “And my advice is, the only way we get someone on the court, now or even later, is to do what we’ve done in the past…we have to pick somebody, as the president will, who is intellectually competent, is a person of high moral character, is a person who is demonstrated to have an open mind, and is a person who doesn’t come with a specific agenda.

These comments are so full of potentially meaningless and yet potentially profound code and buzzwords, I don’t know where to start.

First of all, what exactly these days is a “mainstream Republican” and where do they live? Is Biden referring to the senators who joined a party-line vote to overturn the Affordable Care Act? Is he talking about the “moderate” GOP party-line vote to impose a 20-week abortion ban? Which of the Republicans that voted against Obama’s nominees to the Consumer Financial Protection Bureau are the moderate ones? Which of the ones that have held up judicial nominees for over two years are “mainstream”? How is opposing all attempts by the White House and Democrats to pass paid family leave a “mainstream” position, especially in light of the fact that this policy is supported by a wide majority of Americans? Are the mainstream the ones that continue to block the Paycheck Fairness Act?

Second, does Vice President Biden mean to suggest that a justice who perhaps believes that women have rights to their own bodies cannot be “intellectually competent … a person of high moral character … a person who is demonstrated to have an open mind … a person who doesn’t come with a specific agenda”? Is promoting public health an agenda? Are basic human rights a specific political agenda?

Is Biden suggesting, no matter how subtly and in meaningless Beltway-speak, that a jurist who pays heed to overwhelming medical and public health evidence on the role that both contraception and abortion play in improving public health, women’s health, and infant and child health is not “mainstream” and otherwise has an agenda?

Does a jurist with roots in a specific community and with an understanding of the law’s differential impact on people of different races, classes, and privileges come with an agenda?

Given that the white population will soon be the minority, who is “mainstream,” the white guy or the person of color?

Let’s face facts: What is considered “mainstream” for both of these men is not necessarily based on the needs and priorities of the average American. Schumer is only “mainstream” in that he is a white male senator in a legislative body that is dominated by white male senators (the Senate is 80 percent male and 94 percent white) and in that he takes huge amounts of funding from Wall Street. “Mainstream” for Schumer might well be translated to mean someone who won’t seek to curb the influence of big money in politics.

Likewise, Joe Biden is only “mainstream” on many issues insofar as they can be comfortably navigated within the Old Boys Clubs of which he is a longstanding member, one of which is the Senate and the other of which is the group of Catholic Democrats that remain beholden at some level to the most-conservative U.S. Conference of Catholic Bishops. It was Biden, who as a Catholic is highly ambivalent about reproductive health care, played leading roles in the Obama administration’s decisions on the Stupak Amendment in the ACA, and in the “contraceptive accommodations” made to religious groups, among many other things.

The carve-outs never satisfied the rabidly right-wing bishops and led to continuing lawsuits and ever greater demands of exemptions. This is not a “mainstream” position, especially if you consider that 98 percent of Catholic women (and 99 percent of all women) who have ever had sex have used modern forms of birth control. The only mainstream position on birth control and abortion is the one that recognizes both the public health and social science evidence, the rights of women as people, and the fact that an overwhelming majority of women use birth control and one third of women in the United States have abortions. There is nothing mainstream about white, religious men ignoring that fact or pretending that they know better.

The only reason they suggest that someone who does not have any record of supporting evidence or rights might (and it’s a highly questionable assumption) get approved by the GOP-led Senate is because the Republicans themselves are not mainstream by any stretch of the imagination, and are only interested in someone with an agenda to protect their interests.

In my definition, someone who, as Biden suggests, “is intellectually competent, is a person of high moral character, is a person who is demonstrated to have an open mind, and is a person who doesn’t come with a specific agenda,” is a person who recognizes that human rights, evidence, and justice should be of central concern to the Supreme Court. When I hear Biden use these words, I hear echoes of his 2007 statement that Barack Obama was the first “mainstream African-American who is articulate and bright and clean and a nice-looking guy.” It sounds to me that “mainstream” is someone comfortable to the white men in power.

The word “mainstream” is now meaningless. The media won’t challenge it because most of the reporters are stuck in a white male corporate bubble and spend their time at parties at the vice president’s residence. You can’t depend on them to challenge the very notion of what it means.

When you hear a white male senator or a white male vice president—both of whom have vested interests in agendas that do not represent either the interests of the greater number of people in this country, and/or also ignore solid scientific evidence—use terms like “mainstream,” know one thing: They are not swimming in the same stream as the rest of us.

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