The White House and its allies are signaling a willingness to play hardball with Republicans who oppose President Joe Biden’s eventual nominee to the Supreme Court, who he vowed will be a black woman “worthy” of retiring Justice Stephen Breyer’s legacy.
If confirmed, this nominee would become the first black woman to sit on the Supreme Court — a fact Biden’s team will not hesitate to mention to Republican senators.
“The president’s view is that anyone who’s saying that that’s not possible or we can’t find the most eminently qualified person — that’s ludicrous,” White House press secretary Jen Psaki told reporters. “I mean, that’s suggesting that a black woman should not be a part of the most important court in our nation, that there aren’t black women who have distinguished themselves by rising to the top of the legal profession with the strongest credentials imaginable.”
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Psaki allowed that Biden is “grateful to … the Republican members who have already indicated they plan to work with him” but added, “I think we also … should be clear about some of the games that we’re already seeing indications of out there.“
The White House spokeswoman noted that some Republicans have already criticized the still-unnamed nominee, who is all but certain to join the liberal bloc of the Supreme Court once confirmed, as “radical.” She said any such lawmakers have “obliterated their own credibility.”
Psaki also invoked Ronald Reagan’s nomination of Justice Sandra Day O’Connor in response to a question about whether limiting the candidates to black women constituted “reverse racism” or “virtue signaling.” Reagan had promised during the 1980 campaign to put the first woman on the Supreme Court.
“Well, first, we’d say that the fact that no black woman has been nominated shows a deficiency of the past selection processes, not a lack of qualified candidates to be nominated to the Supreme Court,” Psaki said.
Still, the White House has also expressed openness to bipartisan feedback on the nominee, who Biden said he has not yet selected.
“I’m going to invite senators from both parties to offer their ideas and points of view,” Biden said in his remarks before Breyer announced his retirement.
The confirmation process will play out in a midterm election year, when many black voters, who were indispensable to Biden’s nomination in 2020, are disenchanted with the president, and civil rights groups are panning the White House and Democrats for failing to advance a pair of voting bills. Democrats are defending narrow majorities in both houses of Congress.
Public polling and 2020 election results have suggested that Democrats are losing ground with Hispanic voters. Exit polls indicated that nearly 1 in 5 black men voted to reelect former President Donald Trump. Candidate Biden said if an African American voter remained undecided, “you ain’t black.”
Earlier this month, Biden compared opponents of the Democrats’ preferred voting legislation to segregationists Bull Connor and George Wallace, along with Confederate leader Jefferson Davis. He angrily denied making an exact comparison when challenged on the comments at his White House press conference, though Senate Minority Leader Mitch McConnell, a Kentucky Republican, called the Atlanta remarks “profoundly unpresidential,” and Senate Majority Whip Dick Durbin, an Illinois Democrat, conceded that the president “went a little too far in his rhetoric.”
The tactic is not new. Republican senators who opposed the confirmation of Justice Sonia Sotomayor, the first Hispanic and third woman to serve on the high court, were described as racist. Some conservatives responded in kind, noting this quote from a speech she had delivered: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
Republicans who come out against Biden’s nominee are likely to cite judicial philosophy or other criteria. Liberal commentators have already leveled accusations of racism against conservatives who have questioned Biden’s search criteria, characterizing the objections as demeaning the qualifications of black women.
Democrats, including Biden, have not always allowed concern for racial diversity to trump judicial philosophy or ideology — or, in more cynical terms, have only favored minority candidates who agree with them.
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Biden chaired the Senate Judiciary Committee during the contentious confirmation hearing of Clarence Thomas, the Supreme Court’s second black justice. He voted against Thomas’s nomination. Biden was one of 43 Democratic senators to filibuster Miguel Estrada, whom Judiciary Democrats’ staffers described in a memo as “especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.”
“This time the president will nominate a right-wing extremist who happens to have a Hispanic surname rather than a black face,” Yale law professor Bruce Ackerman warned in the American Prospect after the 2000 presidential election in an article arguing that all of George W. Bush’s court nominees should be blocked by the then 50-50 Senate.
