Friday, January 28, 2022

Part I

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Identity Politics and Intersectionality Come to the Supreme Court: President Biden Says He Will Keep 2020 Campaign Promise in Upcoming SCOTUS Nomination

The President of the United States and Supreme Court Justice Stephen Breyer stood together at the White House yesterday, and the announcement wasn’t news. It wasn’t news because the day before we had been told that Justice Breyer had decided to retire from the court at the end of this term. But still, when public comments are made by a Supreme Court Justice at the White House and when comments are made by the president of the United States concerning the future of the court, that is news. And so what we’re looking at today just briefly is what the president had to say, and to a lesser extent, what Justice Breyer had to say. The president’s comments are the far more important in this case.

The president introduced the issue yesterday at the White House, by saying that the day was bittersweet for himself. He said, “Justice Breyer and I go back a long way. All the way back to the mid ’70s when he first came on the judiciary committee, but that’s another story.” Indeed, Breyer and Biden have had several points of intersection. The staff of the Senate judiciary committee, that judiciary committee itself with Joe Biden long serving on that committee and serving also as chairman of that committee. And as you looked at those two men yesterday at the White House, you were struck by the fact that they were basically from the same generation and they had shared a good deal of American history and Washington experience together.

Both of them actually represent, over time, the liberal trajectory which was the majority position of the democratic party during those years. Both of them have thus been at risk of being left behind by history, given their own parties lurch to the left. But Joe Biden has decided to lurch to the left with his party and Justice Breyer’s decided to lurch into retirement in order to open a position that would allow President Biden to make a nomination while the Democrats still hold majority power in the Senate. They do so of course, only because the vice president of the United States, also a democrat, breaks tie breaking situations.

So as you look at that, you recognize that time is running out. The midterm elections are coming. If President Biden is going to get a successful nominee through, it needs to be very soon. And even as you’re looking at the election, the midterm election looming in November, actually the death of a single democratic Senator or some other issue that might remove a Senator would basically nullify President Biden’s opportunity to name a justice and presidents want to name Supreme Court justices. It is a part of their legacy.

Let me just give you one historical note about that, by the way, this is very interesting. When you think about the kind of power and influence that presidents of the United States exert long after they are out of office or long after they are dead by their appointments to the Supreme Court. President Richard M. Nixon appointed William Rehnquist as a member of the Supreme Court, as an associate justice. He also had the opportunity, by a fluke of history and politics by the way, of appointing Warren Burger as Chief Justice of the United States. By the time you fast forward just a matter of a couple of decades, you reached the presidency of Ronald Reagan, who appointed William Rehnquist as Chief Justice of the United States. Which is to say, as you look at Richard Nixon’s appointees, one or the other of them served as chief justice of the United States for 36 years. That’s over a third of a century. On the other hand, you look at the four year presidency of Jimmy Carter between 1977 and 1981 and you recognize he made not a single appointment to the Supreme Court, which left him feeling that something was missing from his presidency. And indeed it was. There are no Jimmy Carter appointed justices of the Supreme Court.

But let’s go back to what happened at the White House yesterday. President Biden doubled down on a campaign promise that he had made, and this will have tremendous importance in this context. President Biden, speaking of this said, “Choosing someone to sit on the Supreme Court, I believe, is one of the most serious constitutional responsibilities a president has. Our process is going to be rigorous. I will select a nominee worthy of Justice Breyer’s legacy of excellence and decency.” He went on to say, ‘While I’ve been studying candidates backgrounds and writings, I’ve made no decisions except one. The person I will nominate will be someone with extraordinary qualifications, character, experience, and integrity. And that person will be the first black woman ever nominated to the United States Supreme Court.”

There’s so much loaded into that. First of all, you have the President acknowledging that he’s already been looking at the backgrounds of potential candidates to the Supreme Court. And you might say, well, that’s what a White House should be doing. That’s what the President’s staff should be doing. And the President should be involved in it because there could always be such an opportunity. But this isn’t a situation in which there could always be an opportunity. This is a situation that was brought about at least in part by political pressure against Judge Breyer, very public and indeed also private pressure. He also acknowledged that he was bearing the burden of knowing what had happened with Ruth Bader Ginsburg, the liberal standard bearer of the court, who did not retire from the court, even though she had been ill for some time.

She did not retire when a Democratic president could have appointed a very liberal successor. And instead it was President Donald Trump who got to name the successor and that successor was Amy Coney Barrett, which meant this was one of the situations, rather rare over the course of the last several decades, in which a seat was immediately changed from being very liberal, to very conservative. Justice Breyer did not want that to happen. But the other thing to think about here for just a moment is that what President Biden indicated in this pledge made yesterday and the reaffirmation of the pledge that he had made during the campaign, it really does represent the extent to which identity, politics, and intersectionality are just taken for granted. Absolute necessities in the worldview of any democratic candidate at the national level. President Biden said as a way of gaining political traction and influence, that he would make history by appointing the first black woman ever nominated to the Supreme Court. He said that back before he was elected.

Now just consider what that means in moral and constitutional terms. It means that President Biden said, in the course of making that promise, that he is going to isolate out a very small percentage of the potential judges or candidates for this kind of nomination in order to make a statement, a statement about representation. President Biden, during the campaign, made that representation issue clear and he doubled down on it yesterday, as did members of the White House staff, as did so many in the liberal media and in the larger culture. This they say is a victory for representation. Now, representation in this sense is something that we can understand and also something that should bring about concern. We understand it because there is a human impulse to say, we want to see ourselves represented here and there. We feel comfortable in a society where we see representations of ourselves. And we can understand what it means, even just in basic moral terms, that there are certain person, certain constituencies, certain groups that have been under represented.

Now that under representation may be because of some kind of illegal and immoral animus, prejudice, discrimination. It might be for some other reason. We’ll be talking more about that in time to come. But as you’re looking at the professions, as you’re looking at different issues of life and structures and positions, as you’re looking at different executive roles, there are so many people who will say women are still underrepresented between 51 and 52% of the population, but a far smaller fraction of the positions at the top of corporations at the national and international level, et cetera. But what that doesn’t take into consideration is that much of that under representation is the fact that many women have other priorities. And Christians certainly understand this in biblical terms. Priorities of marriage, priorities of motherhood priorities in the domestic sphere, priorities in volunteer work, priorities at the church. In other words, under representation might be a moral problem or it might not be a moral problem.

But this particular White House and this particular president is simply very clearly playing into identity politics. The assumption of this intersectionality that is now so much a part of critical theory and working its way through the entire society and frankly just the representational politics of the democratic party. The expectation, not only we should note the demand of the democratic left, this is just basic democratic urgency these days. Now let’s just remind ourselves that identity politics is based in an ideology that says that the social construction of identity puts people into groups and you can never be outside of that group. That group determines your identity. And in a basic way, that does represent a sort of Marxist analysis. You are oppressed because of your group identity or you have unfair advantage because of your group identity.

When it comes to black women, well that invokes the second issue, which would be intersectionality, that is the claim it’s derivative of identity construction, that you have different points of identity that represent different levels of discrimination and unfairness. You have different levels of privilege and the lack or loss of privilege. And so, as you’re looking at a racial context, the white person it is said will have more privilege than a non-white person. And a man will have more privilege than a woman. That’s the ideology. And so the logic goes, in order to remedy oppression and in order to achieve some kind of equity and representation, preference should be given to the underrepresented. And with intersectionality as an overarching grid, you can understand why just saying, for instance, a black nominee or a woman nominee is not the same as saying a black woman nominee. In one sense, just looking at American history, this is the next thing.

Part II

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Get Ready for the Battle Over Another Supreme Court Nomination: The Stakes Only Grow Larger

But we also need to recognize that in the history of the Supreme Court, we have seen the issue of representation come up again and again. For instance, for decades in the 20th century, it was often assumed that there was a Jewish seat on the Supreme Court. Now that doesn’t mean several seats. It doesn’t mean two seats. For a long time there was one seat. And then the inclusion of Catholics on the Supreme Court. And by the way, Catholics right now represent a majority of justices on the Supreme Court. Thurgood Marshall was the first black Justice of the Supreme Court. Clarence Thomas was the second. If President Biden follows through and his nominee is confirmed, there will be a third. And of course, Sandra Day O’Connor in the ’80s was the first woman Justice on the Supreme Court. There have been several since. There are three women justices serving on the Supreme Court right now. Two identified with a liberal wing and one identified with the conservative wing.

But when you look at this issue of representation, just understand that this becomes a vortex into which we might fall and from which there’s basically no escape. If you buy into this logic, then you bought into more than you might think. Now, just consider the issue of representation. As you think about identity politics and you think about, say, the LGBTQ revolution, and you think about all the overarching issues that are involved in potential points of identity, there are only nine seats on the Supreme Court. Now, of course, a footnote here, liberals want to expand the number of justices to overcome that conservative majority but just put that on hold for a moment. There are nine seats. There will always be some kind of definite limit to the court, but there is an indefinite limit to the intersectional points that might demand representation.

How long will it be before a democratic candidate for president or for the democratic nomination has to say, “I will appoint the first lesbian or the first transgender justice to the Supreme Court?” Or for that matter, given intersectionality, how long will it be before someone says, “As a candidate for the Democratic nomination, I will pledge to appoint the first Asian transsexual justice to the Supreme Court”? It’s not just that shocking to the ear, it should be also shocking to the math. There is no limit upon the permutations that would result from just embracing this kind of identity politics, intersectionality, and the logic of representation. Another thing to note is that the logic of representation runs right into the question of the logic of particular abilities and competencies for certain positions.

Now, let me be very clear. I have no doubt that there are many black women who academically and in terms of judicial background, have the necessary resume to qualify for a president’s attention in terms of a nomination to the United States Supreme Court. That is not a question. But it is also clear that what the president was talking about is not just a gender reference and a racial reference, but a political reference. Because another thing that comes along with this ideology representation is that if you put such a person based upon representation on the court, that person will represent that group, that group’s interest, that group’s experience, that group’s ideology in the actual judicial process. For conservatives, that should be the far larger issue, because that’s exactly what’s going on here. And that is why yesterday, I said on The Briefing that one of the things we need to note is that Stephen Breyer may indeed be followed by someone far to his left. Almost assuredly will be followed by someone far to his left, as the president fulfills this pledge.

And I wrote an article, a major editorial for World Opinion yesterday in which I just made the point that oddly enough, Stephen Breyer might be one of the last liberals to sit on the Supreme Court. And that’s not because he will be followed by a conservative, but he’ll be followed by someone who actually will be significantly to the left of that classical liberal position that was represented by Stephen Breyer and by others. That’s one of the reasons, by the way, not just the timing that the left wing of the democratic party and so many in influence in democratic circles were so insistent that Justice Breyer get out of the way. It was not just his age. It was also his temperament and the fact that he just isn’t leftward enough for the current demands of the Democratic party.

Clearly and especially given the urgency of the context in Washington, events are likely to unfold very quickly on this nomination. So we’ll be tracking it with you and we’ll be talking about it as events unfold.

Part III

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How Should Parents Talk to Children About Transgender Issues in Popular Culture? — Dr. Mohler Responds to Letters from Listeners of The Briefing

But now we shift to the Mailbox. I’m always thankful for thoughtful questions from listeners to The Briefing. Amy wrote in asking about the recent Jeopardy game show champion, Amy Schneider identified as a trans woman. And the point was made that Schneider has claimed that the appearance of a trans contender on Jeopardy is a great opportunity for expanding the nation’s moral consciousness, for normalizing the transgender identity. Amy then raised this issue saying that Schneider has “definitely been given a program for this,” that means the normalization on the show, “and since many families like ours watch this show together, I wondered if you’d consider speaking to how we, as Christians, can respond to this winsomely and with truth, whether talking to our children or other adults?”

Well, that’s a very interesting question, Amy. And it’s so current. This is exactly where all of us are living. Whether we’re watching Jeopardy or not, whether we have children in the household or not. And by the way, that does change the context, we don’t tell children different truth than we tell adults. Christians know that’s an impossibility. But we do choose to speak carefully, strategically with parental love and concern to our children in order to have an age appropriate conversation. But Amy, I thought several times, as I saw the news coverage about this Jeopardy champion, that the very appearance which receives so much media attention actually might have had a different result or a different impact than transgender activists may have hoped. And I see this happening time and again. I see children looking at something like that and saying, “That’s not a woman.”

Now, of course, the transgender ideologues and the major media and political figures, the Hollywood influencers, the cultural creatives want you to say to your child, “No, you’re wrong. You are looking at a woman.” The child’s eyes in this case are telling the truth. There’s something incongruous here. There’s something that is not right. The identity that is presented just doesn’t match the identity that was given in creation. And you don’t need to know the individual’s biography in order to see that, to perceive that. Now how we as parents talk about these issues and talk about them with our children, that does raise the very issues you’re talking about because one of the things we do want our children to see is a human being made in the image of God. We also want our children to see a human being struggling with that person’s most basic identity.

And that reminds us also to talk to our children about the fact that we don’t know ourselves well enough to know our identity and we have no sovereign power to craft our identity. We should instead understand as one of God’s greatest gifts, a demonstration of his love and grace towards us, that he tells us who we are. And even as we sometimes understand a struggle with that. And by that I don’t mean in terms of sex or gender, but we all sometimes wonder, “Why was I born in this place, at this time, to these parents? Why was I born in this century rather than another century?” Well, God is telling us something about when we come to life that is determinative about his sovereign purpose for our lives. And this just helps us to know that one of the things we need to tell our children is that we will never secure our own identity. Our identity can be secured only by God. Ultimately, our identity can only be secured by the atonement achieved by the Lord, Jesus Christ.

Amy, I also want to say, by the way you asked this question so carefully, I’m pretty sure that you are already speaking rightly, as parents in your house, to your children about this situation. But we also understand one conversation doesn’t settle the issue. We need ongoing conversations and the culture is pressing on us so hard and from so many different dimensions and directions that it’s not just a Jeopardy champion that we’re talking about here. It’s figures from entertainment, it’s figures from politics, figures in popular culture, not to mention the ideology of the sexual and gender revolution that is being foisted upon children in the schools.

And as I often discuss when we confront the transgender issue, one of the things Christians need to remember again and again, is that saying something so, even surgically trying to modify to say that something is so, when it comes to the most basic issues of life including our identity, it doesn’t make it so. And that’s as true for non transgendered people as it is for those who claim a transgendered identity.

Part IV

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Economic Ethics: Should Politicians Be Able to Trade Stock While in Office? — Dr. Mohler Responds to Letters from Listeners of The Briefing

Next, I want to turn to a question from James. And he asked a couple of questions, but the one we’re going to take today, he says, “What about politicians being able to trade stock in office? Should they be able to do so?” And he says, “In one sense, maybe they should be able to do so because we already have plenty of legislation on the books that outlaws insider trading.” Well James, a very interesting question. And I’m not sure there’s a clear yes or no to this, but let me tell you what the danger is in those who are involved in making government policy, being able to invest just like everyone else. And the reason is this, and it’s not because you would always find politicians doing the wrong thing or using some kind of false motivation to establish legislation or regulatory procedures.

So it comes down to this though, the laws against insider trading say that those who have inside information, most particularly from say inside a publicly traded company, they don’t have the right to make stock purchases or sales based upon that knowledge, which is not given to the rest of the market. So it’s an unfair advantage. The problem when it comes to those who are in government, and again, this is not something that is easily solved, but the problem when it comes on to someone in government is that it’s not just inside information about, say, a company, it’s inside information based upon the promulgation of law and regulatory policies about the entire economy. And so you could have politicians who just would by nature of their legislative or regulatory responsibility, have inside knowledge of the entire economy in order know the federal government’s going to be investing billions of dollars in industry X or this particular rule change means that that company’s business is going to be hurt. This corporation or industry’s business is going to be helped.

And you could see where inside knowledge will play a role here or perhaps even a calculated effort to create the law or the regulation in order to advance one’s financial portfolio. Now, James, I think you’re onto something with how you answer the question. It is really difficult in the fallen world to avoid answering a problem of regulation with anything other than more regulation. And when it comes to the stock market, too much regulation means it fails to be a legitimate market. On the other hand, too little regulation means that there is no assurance that investors are actually buying anything with their investments. In a fallen world, the fact is that we need a certain level of law and we should understand that God gave us law as one of his good gifts. It gave us law and government as structures of society that are vital to our human wellbeing. But we also understand that human [inaudible 00:22:33], being what it is, the government will turn itself into a tyrant. Regulators will promulgate regulations that will strangle the very thing they are assigned to protect.

And so James, that’s why the classic conservative answer to this question, by the way, I think this is also something that makes a great deal of sense, is that the most important issue is transparency, making everything visible. It’s not so much limiting opportunities as it is making everything as transparent as possible so that everyone can see exactly what’s happening and make their decisions accordingly.

We have some other great questions coming. We have a lot on the same issues this week and I understand fully why that’s so. It’s because we’re confronting so many of the same issues all the time, virtually almost every day. And every day, five days a week, we’ll try to think these things through biblically together.