Where is President Biden's Solicitor General Nominee already? And what about OLC?

Is there some strategic reason for the delay? Or still internecine conflicts over the selection?


Since the inauguration, the Biden Administration has made many consequential decisions before the Supreme Court. DOJ has switched positions in some cases and settled others. Yet, almost all of these pleadings have been signed by the Acting Solicitor General, Elizabeth Prelogar. (Prelogar was recused in the ACA case; Deputy SG Kneedler withdrew the government's prior brief). To date, President Biden has not even nominated a Solicitor General. What's the hold up?

After the election, there was a smattering of writings suggesting that Biden should nominate an African American woman for the job. But in January, we learned that a leading contender, California Supreme Court Justice Leondra Kruger "twice declined the job." Two months later, still silence.

Last week, Elizabeth Wydra of the Constitutional Accountability Center urged Biden to nominate an SG "to meet this historic moment."

Given renewed attacks on the right to vote by some state legislatures, as well as ongoing police violence against Black people and hate crimes targeting people of color, voting rights and racial equity are sure to dominate our nation's legal agenda for years to come. Often, those disputes will culminate before the nine justices of the U.S. Supreme Court.

That makes another, less visible, office in the Justice Department — solicitor general of the United States — a critically important position for Biden to fill.

The question is whether he will select a nominee ready to meet this fraught moment in our history and help honor the second founding of our nation that Garland so eloquently invoked.

The time for such bold leadership is upon us again. Biden has a historic opportunity to choose a solicitor general worthy of Bristow and Marshall. Our times demand nothing less.

This timely op-ed suggests that there is still internal debates about who should be selected. Wydra wants Biden to go big. Presumably, some other faction wants Biden to play it safe. I suspect race will play some factor here. If Biden selects a white man, then sectors of his base will be unhappy. Back in January, the National Law Journal floated Andy Pincus and David Frederick. Progressives for sure, but white men. It's possible that Prelogar becomes the ultimate nominee. She is a female, but is also white. Will her nomination be enough to meet "this historic moment"?

On a related topic, what about the Office of Legal Counsel? Who is running the show now? The administration has made several important legal decisions in the last few months. Someone has to be advising the White House.

NEXT: Additional Issues in Cedar Point v. Hassid

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  1. Wydra wants Biden to go big. Presumably, some other faction wants Biden to play it safe. I suspect race will play some factor here

    Isn’t race the least important factor? Relegated to, “all other things being equal” status?

    1. Maybe you should quit your day job, that was pretty funny.

      1. Diversity jokes can be funny. So can circumstances with respect to diversity, such as . . . 85 percent of Trump judicial nominees being White . . . 75 percent being male . . . and a guy at a remarkably White, strikingly male blog wondering about whether race should be a factor in selections.

        1. So, tell us Rev. Should race be a factor in selections?

          1. It seems to be a prominent factor at right-wing blogs. That doesn’t necessarily indicate racist management. It could merely be customer-focused management appeasing a racist audience.

            1. It seems to be a factor only in your mind.

            2. Arthur….answer the direct question: Should race be a factor in selections?

              1. I have to say, if the only actual drawback is that people who think that noticing black people exist is the real racism get mad or roll their eyes or have their biases confirmed, then Biden should go ahead and do whatever the hell he thinks best.

                1. Oh, come off it. You’re not going to seriously suggest that the only way to notice black people is to explicitly hire them on the basis of their race, are you?

                  Pure meritocracy ignores blacks?

                  1. Oh no, Brett, there’s all sorts of ways to notice black people exist, and most of them seem to drive you out of your mind. Meanwhile, call us back when the US is a pure meritocracy.

                    1. I manage to notice black people in exactly the same way I do white people: By noticing them as people, not black people.

                      I live in a mixed race neighborhood, life would be pretty strange if I didn’t notice half my neighbors.

                      But you mean something different by “notice”, than just not walking into people, don’t you? You’ve got some funky definition of “notice” going on where I have to care what somebody’s race is, to have “noticed” them.

                    2. This is a great discussion to have at a stunningly White, strikingly male blog that resides on the side of the American political divide that targets minorities for voter suppression.

                    3. Congratulations, Brett, you managed the most basic level! Wow the bar is set low for you.

            3. You didn’t answer the direct question Rev.

              Should race be a factor in selections?

              1. I believe race is nearly always a factor in human decision, at least in today’s American society. Until that changes, it seems important that people should be conscious of — acknowledge — that point.

                I expect to be informed you are on the “colorblind” side — the side trying to reduce or eliminate Sunday voting in Georgia because of vestigial racism that continues to animate one of our political parties. Also, the side that closes voting locations near Black college campuses. In other words, the right-wing bigots.

                1. That sounds like a yes Rev.

                  So, to be absolutely clear here, when selecting someone for a role, YOU THINK that their race should be taken into account.

  2. He’s going to seriously handicap his administration this way, relegating competence to second or third place in staffing his administration. The talent pool he has to draw from is radically diminished.

    1. Please expand on this not at all racist sentiment. I’m sure it won’t devolve into a discussion of everyone’s favorite brand of caliper.

      1. What, are you dense? Where A and B are positive integers, A+B must always be larger than either A or B alone.

        The pool of qualified black female nominees must always be smaller than the pool of “who cares what they look like?” qualified nominees. All things being equal, black females are about 7.5% of the US population; Excluding 92.5% of the population from consideration radically diminishes the talent pool you have access to.

        Add the requirement that the nominee be a left-wing radical who is confirmable, and you’ve probably eliminated 99% of the possible nominees right off the bat, possibly more.

        1. No. But you are a racist.

          You think he’s automatically relegating competence to race as if it’s a choice. It may be news to you, given your racial biases, but there are many competent PoC for top positions. You just don’t think there are because you’ve been conditioned to believe that mediocre white men like you are by default a competent talent pool.

          1. All you’re doing here is demonstrating what I pointed out in another comment thread: That leftists use “racist” as a content free epithet, and that not being racist is frequently the quickest route to being called a “racist” by left-wingers.

            He has, by choice, explicitly stated that his nominee will be a black woman. That’s literally both racial AND sexual discrimination, of the sort that would get you hauled into court in the private sector, if you were that open about it. It eliminates from consideration the vast majority of the available talent pool.

            Now, maybe in your fantasy world, eliminating from consideration between 92 and 99% of the available talent will have no impact on the quality of your eventual staff, because the most qualified possible selection will just magically happen to be in the group that remains under consideration. But that’s a fantasy.

            If you select your staff primarily on race and sex, and only secondarily on merit, you end up with a less competent sex.

            Outside of racist fantasy worlds like your own.

            1. Less competent staff. Darned dyslexia.

              1. Dyslexia . . . a spot on the spectrum . . . chemicals . . . after a while, you can get to where you’re no better than a Black person or a woman, right?

                1. Statistically speaking, I’m quite confident there are blacks and women who are better than me. I may even have met some of them from time to time.

                    1. There are a lot of people in this world. I doubt Brett has met more than a very small fraction. Is that so hard to comprehend?

                    2. How can you know for sure if you weren’t there when Brett didn’t meet them?

                  1. ” I’m quite confident there are blacks and women who are better than me.”

                    No kidding.

            2. Brett going with the classic: leftists are the real racists. Even though he is:

              1. A birther
              2. Against the civil rights act and in fact thinks it violates the 13th Amendment.
              3. Believes that black voters are enslaving themselves by using their vote to vote for Democrats, calling it a “plantations.” Seriously how can you not think you are a racist after believing this?
              4. Doesn’t want predominately black DC to be able to vote
              5. Never met a voting restriction that affected predominately PoC he couldn’t support.
              6. And let’s not forget your use of the “he’s not a real Jew” trick you use to launder your antisemitism.

              Racist isn’t an epithet. It’s a description and a criticism. It’s supposed to get you to reflect and better yourself. But you can’t and won’t because you’re comfortable with your privileged status as a mediocre white male, and have a massive massive case of Dunning-Kruger.

              When you call me a racist, I consider it. Couched in the right terms it’s a powerful argument. But then I think how all these supposedly neutral rules seem to end up with the same mediocre white men in charge at every level of society over and over again. I mean surely you’ve noticed that? And surely you noticed how the supposedly race-blind party seems to advance a lot of mediocre white men to positions of power and prestige?

              Maybe just maybe slavery and Jim Crow, which was in living memory, still have negative effects that were never remedied. And that giving someone a leg up isn’t that same as cutting someone else down. Society isn’t a zero sum game.

              But it’s never too late to be better.

              1. And that’s the way it works: Coming right out and saying you intend to hire on the basis of race and sex? Neither racist nor sexist.

                Noticing that it diminishes the pool of talent you can draw from? Impermissible bigotry.

                “Racism” has nothing to do with racism, in fact, refusing to be racist, insisting on hiring by merit instead, gets you labeled a “racist”.

                1. Brett:

                  You don’t refuse to be racist though! Don’t you get it?! You’re not colorblind. You think that Black people lack agency and are enslaved by Democrats. You think the first Black President isn’t even American, a lie pushed by other racists. You think that the legislation resulting from the Civil Rights Movement is ENSLAVING YOU!?

                  And you absolutely refuse to consider the voices of PoC, and use the fig leaf your supposed color blindness.

                  I mean don’t you think it’s at least a little odd that your not racist “color-blindness” seems to always result in positions and policies that ignore and deny the issues of Black Americans and tend to always always support and result in White people maintaining political and economic dominance???

                  1. OK, let’s start with #1.

                    It’s simply a lie to call be a birther. Google is your friend: I consistently stated that I thought the birthers were entitled to a hearing in court on the merits, which I entirely expected them to lose. Because, while it was theoretically possible for Obama to have been born abroad, it would have required an implausible conspiracy at a time when nobody would have known it mattered.

                    1. You saying you can’t be sure because you weren’t in the hospital.


                    2. Yes, I’m saying that the place of Obama’s birth is not a logical truth, merely contingent, and it is only sane to retain some minimal quanta of doubt concerning contingent facts, particularly ones you weren’t witness to.

                      I’m not a member of your church, stop demanding that I share in your faith. It should satisfy you that I think it extremely unlikely that Obama was born anywhere other than that hospital in Hawaii.

                    3. Brett,

                      This is the logic of Holocaust Deniers.

                      “and it is only sane to retain some minimal quanta of doubt concerning contingent facts, particularly ones you weren’t witness to.“

                      That’s what Holocaust deniers do when they question the historically accepted numbers. They claim they’re just asking questions and looking for proof because they’re empiricist. When really they’re poisoning the rhetorical well and sowing doubt.

                      You’re sowing doubt about the American-ness of the first Black president, and using the just asking questions tactic to gain some level of deniability for what you’re doing.

                    4. Don’t “deniers”, um, “deny”?

                      You must have been a lot of fun in philosophy class; When the prof started describing Descartes’ Demon, you called him a “Holocaust denier”.

                  2. “2. Against the civil rights act and in fact thinks it violates the 13th Amendment.”

                    That’s true: I think the 1964 civil rights act was unconstitutional, and public accommodation laws can violate the 13th amendment.

                    The 14th amendment is quite explicit about only reaching state discrimination. “No state shall”, “nor shall any state”. Am I a state? Are you? The 1964 civil rights act, while well intentioned, went beyond the powers granted the federal government.

                    And public accommodation laws frequently mandate involuntary servitude, though not slavery.

                    How does this make me a racist? I don’t think people should discriminate on the basis of race. I simply think some of the tools the government has resorted to in order to combat racism were unconstitutional.

                    1. It makes you a racist because if you had your way Black Americans would be relegated to even greater levels of economic and social oppression. And you think that’s fine. You think it’s fine.

                      And again the fact that you’ve decided one of the greatest accomplishments of Black people in American history is the SAME as the slavery the thirteenth amendment abolished is absolutely racist. Black People having equal access to society is enslaving you somehow. Seriously, that’s your view.

                    2. “It makes you a racist because if you had you…”

                      Wow. If you’re arguing that people should be selected for jobs based on their race, you’ve got no business explaining to other people why they’re racists.

                    3. I do. Because you and Brett’s non-racism conveniently lets Black Americans continue to be marginalized while you enjoy the benefits of “racial equality.”

                    4. “I think the 1964 civil rights act was unconstitutional, and public accommodation laws can violate the 13th amendment.”

                      The first clause has some plausibility, but the second one reeks of rationalization and desperation, of straw-grasping.

                    5. As you’re probably aware, in Heart of Atlanta, the hotel owner (Unsuccessfully) argued that being forced to provide service to people he didn’t want to was, in fact, involuntary servitude.

                      So it isn’t as though it’s a novel argument.

                    6. Well done on keeping it alive in spirit, I guess.

                  3. “3. Believes that black voters are enslaving themselves by using their vote to vote for Democrats, calling it a “plantations.” Seriously how can you not think you are a racist after believing this?”

                    It’s racist to think blacks aren’t acting in their own best interest? That hardly denies them agency, it merely denies they’re using it well.

                    It’s a mistake, but one they’re entitled to make, and suffer the consequences of.

                    1. If you thought that, why do you use the term “plantation?”

                      And yes it is. Because how would you, know their best interests? They’re telling you what their interests are for the last 50 years and you’ve been ignoring them and saying it’s slavery.

                    2. As typical, you place more importance on the implications you yourself freight words with, than with what somebody is saying with them.

                    3. Brett the only implication of saying “Democrat Plantation” is that you think black people are dumb slaves and not intelligent people voting in their interests.

                      You just want to escape the implications of your words and expect people to accept your weak denials at face value.

                    4. Ignoring the implications of the words you use doesn’t make them go way.

                    5. Attributing implications to words others use doesn’t make other people responsible for your own imaginings.

                    6. Insisting ‘plantation’ doesn’t carry that meaning is Trump-level stuff.

                  4. “4. Doesn’t want predominately black DC to be able to vote”

                    I think the populated areas of DC should be returned to the states from whence they came, where those people would then be able to vote just like any other state resident. Their race has nothing to do with it.

                    1. Oh really? The fact that you want a solution that dilutes black voting power in the US Senate isn’t a race thing? Keep telling yourself that.

                    2. Brett:

                      Your birther conduct is not forgotten because you were such a strident birther.

                      You are a bigot. And a clinger. Why not just embrace it, focus on owning the libs when you see a chance to take a shot, and generally enjoy jousting in defeat during the time you have before your ideas are vanquished and you are replaced?

                    3. “You are a bigot. And a clinger. Why not just embrace it…”

                      Lol. You’re the biggest bigot that comments on here, Arthur. And you’re an asshole. And you’re too stupid to be a good bigot or asshole. So embrace that.

                  5. “5. Never met a voting restriction that affected predominately PoC he couldn’t support.”

                    I don’t care who your hyper attenuated ‘voting restrictions’ affect. I can think of plenty of voting restrictions I would object to, some of which are actually in place. Felon disenfranchisement: I think felons, upon finishing their sentences, should be restored ALL their rights, voting included.

                    1. Well that’s nice on the felons.

                      But you not caring who voting restrictions affect is due to your racial biases. You don’t care because you know exactly who they affect. And you know it isn’t the people who look like you.

                    2. “Your not caring about race is due to your being a racist!”

                      Thanks for summing up your whole argument so neatly.

                    3. It’s one of a number of issues Brett seems to think that will go away with carefully applied complacency.

                    4. Nige, indeed, often the only way to stop doing something is to just stop doing it, rather than continuing to do it, only in the opposite direction.

                      The way to end racial discrimination is to stop racially discriminating. It’s as simple as that. If racial discrimination is an evil, you can’t cure that evil by more racial discrimination.

                      And we can see the logic of the contrary argument playing out, in, for instance, the rise of ‘neo-segregation’.

                    5. I’m all for ending racial discrimination. In the meantime, positive disrimination provides a limited corrective and heightens awareness.

                    6. We have to be racist to end racism. Got it.

                    7. There’s no such thing as “positive” discrimination, it’s a zero sum game. You can only discriminate in one group’s favor by discriminating against another.

                    8. What a pity America didn’t work that out at the start, we wouldn’t still be wrestling with it. If you don’t like the current state of things, blame slavery and racism and the opression of black people, they’re the reason it needs to be done.

                  6. “6. And let’s not forget your use of the “he’s not a real Jew” trick you use to launder your antisemitism.”

                    I’m not antisemitic, I just notice that, like any religion or ethnicity, some people are actual believers, and some people just treat it as a quaint tradition.

                    I might wear something green and eat corned beef and cabbage on St. Patrick’s day, and have a grandmother on my mother’s side whose maiden name was “Murphy”, but I’d never claim to be genuinely Irish.

                    1. You’ve taken it upon yourself to decide that certain Jews aren’t actually Jews so you can engage in some puppet master rhetoric.

                    2. Puppet master rhetoric?

                    3. Soros.

                      Let’s not forget your borderline Holocaust-denying smear that he was an actual Nazi.

                    4. If I was denying the Holocaust, why would I care if he was a Nazi?

                    5. Soros was a Nazi quisling that give up his fellow Jews in Hungary. There is video of him saying it on 60 minutes for Christ’s sake.
                      To deny that is to say the sky isn’t blue, and you’re not coming from a place of honest debate.
                      KROFT: Went out, in fact, and helped in the confiscation of property from the Jews.

                      Mr. SOROS: Yes. That’s right. Yes.

                      KROFT: I mean, that’s — that sounds like an experience that would send lots of people to the psychiatric couch for many, many years. Was it difficult?

                      Mr. SOROS: Not — not at all. Not at all. Maybe as a child you don’t — you don’t see the connection. But it was — it created no — no problem at all.

                      KROFT: No feeling of guilt?

                      Mr. SOROS: No.

                      KROFT: For example that, ‘I’m Jewish and here I am, watching these people go. I could just as easily be there. I should be there.’ None of that?

                      Mr. SOROS: Well, of course I c — I could be on the other side or I could be the one from whom the thing is being taken away. But there was no sense that I shouldn’t be there, because that was — well, actually, in a funny way, it’s just like in markets — that if I weren’t there — of course, I wasn’t doing it, but somebody else would — would — would be taking it away anyhow. And it was the — whether I was there or not, I was only a spectator, the property was being taken away. So the — I had no role in taking away that property. So I had no sense of guilt.

                    6. ‘Nazi quisling’ – he was a kid trying to survive under occupation, and you know damn well all you right-wing weirdies and cranks take that and run deep into anti-semitic conspiracy mongering with it.

                2. ‘Coming right out and saying you intend to hire on the basis of race and sex?’

                  ‘We’re gonna put in white men only!’ – racist and sexist.

                  ‘We’re gonna address the historical imbalance of representation that came about through systemic racism and sexism’ – neither racist nor sexist.

                  You might find that a bitter truth, but true it is.

                  1. Both racist AND sexist, you just think your own racism is fine because you’re ‘good’ people doing racism for the ‘right’ reasons.

                    1. No, it’s noticing a massive set of problems and doing something about them rather than pretending they don’t exist because they don’t affect you.

                    2. It isn’t failing to recognize a problem when you reject a proposed solution.

                      Let’s say your proposed solution to inner city gang violence was to conscript innocent people to serve as human shields for the gang members. This might even work.

                      Would it be failing to recognize the problem of gang violence to reject this solution?

                      If racial discrimination is actually an evil, how can you justify committing this evil against innocents as part of your solution to it?

                    3. So, you acknowledge that US is socially and institutionally racist? Well, that’s a start, I suppose. It’s more like, stabbing people is bad, but surgery isn’t. Or maybe you have an entire society where the rich and the powerful and the just plain white get all sorts of preferential treatment, but when it takes some some marginalised people getting comparatively smaller and rarer nods for you to go ballistic, it’s pretty damn clear that it’s not ‘discrimination’ per se that bothers you.

            3. Where oh where was this concern about the size of talent pools when Trump was giving Jared Kushner all the jobs?

              1. I will charitably say you’re ignorant of pushback from inside his own camp, and the party-in-the-electorate, when the Kushner got the gig he did and specifically the policies he advocated.

                1. Yeah, that was kept on the down-low.

                    1. That looks more like blaming Kushner for Trump’s woes because of reports that Trump was blaming Kushner (woke? Lol) for his woes, as Trump is wont to do – blaming other people for his failings, that is.

                  1. Tons more like it if you take a look.

          2. I never thought I would hear someone in honest conversation say “the whole is smaller than the part”. Plato is rolling in his grave.

            1. Well, if math is racist, logic must be racist, too.

              1. According to the Smithsonian’s opinion on what constitutes “whiteness,” it is.

      2. “Please expand on this not at all racist sentiment. I’m sure it won’t devolve into a discussion of everyone’s favorite brand of caliper.”

        This has to be gaslighting. Nobody can not understand this.

        1. No. Me just using my deductive reasoning skills to conclude that Brett thinks Biden will hurt himself by picking PoC, because PoC aren’t qualified. It isn’t that hard.

          1. “No. Me just using my deductive reasoning skills…”

            I see. I’m so sorry.

      3. You somehow managed to lose an argument where all you had to do was show that Brett Bellmore is racist.


    2. Brett, I could be wrong, but I don’t think Biden himself ever said he would nominate a black woman for SG. Prof. Blackman’s post says a “smattering of writings” suggested he do that. I’m not even sure what that means, but I think Prof. Blackman is assuming a reason for the delay which may or may not be true.

      As to limiting the talent pool, I would suggest that there are plenty of non white male candidates who are eminently qualified for various positions that need to be filled. So many in fact that the difference between your A and A+B pools isn’t really significant, in terms of finding qualified people. Sometimes it sounds like your type of argument is really just a reason to attack any nominee who isn’t a white male.

      1. Classic example of the new math which ignores the right answer if the process is WOKE. Even with all the affirmative action whites dominate the numbers of law school (I assume the SG will have a law degree) graduates, even more so law school grads who have passed the bar ( I assume the SG will have passed the bar), and even more so have graduated suma cume laude.

        I know it is hard for some dems to count above ten (or twenty if they take off their shoes) but you really need a reality check if you don’t think excluding white males from consideration does not drastically reduce the pool of applicants.

        1. Don’t mix up a threshold question with an optimization question.

          There are plenty of people who are at a sufficiently elite level to be SG.
          Maybe there is one of them who is marginally better than the others, but I don’t think a process can suss that out. After a certain threshold, predicting performance is hard.

          Unless you think only white folks are above the threshold, this is not an issue.

          1. No, what I think are two things:

            1) The Biden administration has openly embraced racially and sexually discriminatory policies, and the left is just fine with that. You’re not even pretending that non-discrimination is your goal anymore.

            2) If you eliminate 93-99% of your potential hires right off the bat, on non-merit criteria, yeah, I think this is going to impact the quality of the available hires.

            1. 1) The playing field is still not level, and marginalized perspectives are a merit in and of themselves in a society seeking to correct that.

              It’s open only because you’ve decided on a definition not everyone shares. Not that I can stop conservatives from declaring whites oppressed yet again.

              2) Read what I said about thresholds and optimization above. I’m not sure an optimizing process gets you very far at such rarefied levels.

              1. Will the playing field ever be level? What metrics to you propose for “levelness”? Could you ever foresee a ratcheting down of affirmative action the closer to these goals we as a society get?

                Note, I’m sure you’re aware those are leading questions, but humor me, and pretend you don’t know that I know and what everybody knows, that there are client groups with a vested interest in ensuring that resources flow their way and thus would be deprived of those resources if the field were ever “level.”

                1. I do not have a crystal ball, I don’t know.

                  But positions of power in the US continue to be vastly whiter than the population. Unless you want to argue white people are inherently better, seems like there’s an issue there.

                  Not to mention the plentiful studies about bias in hiring, and grading, and testing.

                  You can declare that the issue is ‘client groups.’ But doesn’t that make mad whiteys a client group of the GOP just as much? Seems a pretty reductive understanding of politics.

                  1. >But positions of power in the US continue to be vastly whiter than >the population. Unless you want to argue white people are >inherently better, seems like there’s an issue there.

                    That is irrelevant red herring combined with a false dichotomy combined with straw man argument of what somebody opposed to affirmative action typically thinks. It’s hard to fit three logical fallacies into two short sentences, but somehow you managed!

                    Think about it this way, when it comes to “client groups.” People are self interested, and organized groups collectively push their interests. The definition of politics is “who gets what.” Now, ask yourself, for example, if the American Society for Civil Engineers is ever going to rate America’s infrastructure an A+. Further, if you’re capable, apply the self-evident conclusion about engineers to racial issues.

                    What metrics would you propose? And was is wrong about whites self-advocating, like say, any other racial, ethnic, or religious group?

                    1. One can tell you’re worked up when you call something an irrelevant red herring. And your other supposed fallacies are also not applicable.
                      I pointed to an indicator of what a level playing field looks like, just as you asked. That seems to make you have some trouble replying.

                      You’re describing politics in a republic in general, not some degenerate racial clients nonsense you picked up God knows where. It’s not just black people who are into addressing racial injustice. (And it’s not just white people on the other side). It’s just appealing to coalitions. Sometimes with money, sometimes with policies, sometimes with rhetoric.

                      A metric where the powerful in our country look like the people in our country seems not unreasonable.

                    2. Oh, trying the “you much be upset” or “I must have touched nerve” tactic. Don’t make me laugh. That works on twitter maybe, but not here.

                      And this stupid debate about affirmative action goes back to Reconstruction, because the black man isn’t allowed to stand on his own two feet, being either kept down or being unable to stand on his own when given the chance and crying baby about it. And the same pro/con arguments are deployed by both sides since then. Don’t act like this is anything new.

                      So, you want 13% of powerful people to be black? Define “powerful people” please.

                    3. ‘the black man isn’t allowed to stand on his own two feet’

                      This weird thing where the black man must be isolated and outside, working by himself and for himself, with no recourse to the power structures of society, because then he isn’t standing on his own two feet, according to the arbitrary conditions imposed by white people. The interests of black people must be kept away from those of white people and no part of the power or energy of our institutions must be touched by them or be used to acheive them, because then, suddenly, they are on a plantation, no longer standing on their own, and when they speak out, you hear a baby crying.

                      Meanwhile, a vast white aggreived mob can flex its muscles through money and power to contest at every level and avenue their patently ridiculous claims about a fraudulent election, culminating in a Capitol invasion where the doors were opened for them. The white man, standing on his own feet, demanding his every idiocy be taken seriously and the election be handed back forthwith.

                    4. Musta missed that part in my reply where I admitted that the black man was kept down. Try reading it again.

                      But when given a chance, and not getting the same results as the whites or the Asians, they also cry baby about it.

                    5. You listed a bunch of fallacies I didn’t do.

                      You want to come out against Reconstruction, uh, go ahead. That’s pretty freaking racist, but such is your right.

                      You know what powerful people are, so I don’t know why you’re trying to be cute.

                    6. Yeah, I know, kalak. When white people believe a lie about a stolen election they’re the voice of the people. When black people complain about police brutality and accountability they’re crybabies. Don’t you think we see how it works with you?

    3. If we were creating a larger body that indeed would be true. For a single position that is only true if NONE of the members of the preferred class are among the most qualified. I don’t think you can say that here. So unless all candidates that both have the required competence and meet the “handicap” decline then the skill of the person who takes the position will not be diminshed

      1. Well, that’s one way of denying it: Set a bar, and declare anybody who clears it meets the minimum qualifications, and that once you’ve done that, any extra competence is pointless.

        Well, I agree that being a racist and sexist won’t stop Biden from finding somebody who meets the minimum qualifications to be AG, though I won’t agree that the race and sex of the pick is more important than being better than the worst person who could do the job.

        1. “Well, I agree that being a racist and sexist won’t stop Biden from finding somebody who meets the minimum qualifications to be AG”

          He picked a white guy to be AG.

        2. First, I think it should go to the most qualified regardless of intrinsic characteristics. But you didn’t read my post if you got minimum qualifications. “Among the most qualified” was my statement. That is a simple recognition that the notion there is only 1 best is absurd. There will be many that are indistinguishable at the top of competence and I fully expect that there will be minorities among them. Therefore picking a minority doesn’t diminish the competence of the position whether I like that method or not.

    4. Even if that were true (ew) it’s still an improvement on the talent pool Trump drew from, which was, notably, his direct family.

  3. “On a related topic, what about the Office of Legal Counsel? Who is running the show now? The administration has made several important legal decisions in the last few months. Someone has to be advising the White House.”

    This guy?


    Anyway, as your much more accomplished and respected colleague from across town suggested last week, if you’re this shocked at Biden you’ll probably go apeshit when you find out when Trump’s SG and AAG for OLC were confirmed.

    Seriously. This is some dumbass trolling from you. Do better.

    1. Pointing out that Trump did a worse job is not helpful, because it’s pretty much ALWAYS going to be true.

  4. He wants to make the announcement in his State of the Union speech.

    1. I can’t tell if that’s joking or not. Taking time out of the SotU to bring up a fairly inside baseball nominee like SG seems a bit unlikely. But maybe there’s actually precedent for doing that—if anyone knows please enlighten me. I suppose if he does nominate someone really off the beaten path, that could potentially be mention-worthy.

      1. What makes you think Biden with have a SotU.

        1. I agree. I would be surprised if he delivers a State of the Union address. He could barely get through a half hour speech in front of cameras or town hall. Plus, a State of the Union means that there is no opportunity for a green screen.

  5. Prelogar should just change her self-identification to Black. Problem solved.

  6. On a more serious note, at least for SG, I think Prof. B. actually identifies the reasons for holding back a little in his very first paragraph. Switching positions and settling cases etc. is a bit sensitive, and contrary to what he implies, were it up to me, I think I’d actually prefer to get that all out of the way before taking up an SG nominee. Then at the confirmation hearing it eliminates all the possible questions about what to do with those cases.

    Plus, AG is of course the real big kahuna at DOJ, and there already is a nominated and confirmed AG in Merrick “A-Merrick-a” Garland. So SG and OLC are slightly lesser concerns.

    1. Yes but making the chief justice angry with switching positions, settling cases, backtracking, doubletalk, and all manner of hostility towards settled law and the bill of rights is a guarantee of losing.

      1. Is this happening?

        1. I feel like we’re missing out on a lot of exciting developments.

          Also, apparently only CJ Roberts’s feelings matter now. I guess then he just tells the other 8 Justices how to decide each case.

          1. I think it’s more a matter of the CJ being the only one of them likely to rule based on whether or not you’ve hurt their feelings.

            1. How is that established?

              1. When you’re a Conservative, you just know some things are true without need for outside confirmation. Objective facts just confuse the matter. This might be one of those things that Brett just knows because of his place in the center of the Universe.

                1. Naw. Josh Blackman can tell us what motivates the Chief Justice, down to what breakfast cereal he had.

    2. I was thinking that since his first choice declined twice, that Biden might have decided to wait until Garland was confirmed as attorney-general and consult with him on the position.

  7. I’m guessing you were correct that the person Biden wanted doesn’t want the job. so it’s a waiting game… with the administration give up and pick someone else, or will they wear down their preferred SG?

  8. I notice how comfortable liberals are having lower standards for blacks in general. Do they collectively ever notice, and if they do, do they care?

    1. Your point only works if the standards within our meritocracy are perfect at predicting merit.

      Ask a black person if they think efforts to get them representation in the corridors of power is actually lowered expectations for blacks in general.

      1. Very comfortable it appears, considering we don’t have a meritocracy, we have an oligarchy with meritocratic window dressings.

        Did you win a gold in mental gymnastics at the Beijing Olympics?

        1. Well if we don’t have a meritocracy, then how can you tell we’re lowering standards?

          1. Why is there so much complaining and whining about the standards that do exist. Why are they reduced or removed for blacks (except in sports, lol)?

            1. A meritocracy is not a binary.

              Standards are not reduced for blacks.

  9. Note, just yesterday that the OP may not be aware of. Democrat minorities Tammy Duckworth and Mazie Hirono said they vote against all Biden nominees that are not “racial minorities.” They will only vote for a white nominees if gay or a tranny.

    With a 50-50 split in Senate, this matters.

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