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Numerous Republican senators have criticized President Joe Biden’s promise to nominate a Black woman as the next Supreme Court justice.
That Biden would focus on Black women is “offensive” and “insulting,” according to Sen. Ted Cruz of Texas.
“You know Black women are what, 6% of the US population? He’s saying to 94% of Americans, ‘I don’t give a damn about you, you are ineligible,’ ” Cruz said on a podcast released on Sunday.
Cruz forgets or ignores that 94% of Supreme Court justices, from the founding of the country until now, have been White men. Exactly 0% of Supreme Court justices during the course of US history have been Black women.
CNN’s Chris Cillizza has a more in-depth look at the statistics:
Here’s the math: There have been 115 Supreme Court justices in history. Of those 115, 108 were White men. That means that 94% of the justices on the Supreme Court have been White men, and that just 6% have been either a person of color, a woman or both.
Cruz, it’s a safe bet, will ultimately oppose any Biden Supreme Court nominee, because any Biden nominee will have an empathetic worldview and a liberal voting record.
The fallacy of the court is that the justices are able to exclude their own worldviews and politics to act as impartial umpires.
This is compounded, every time there is a vacancy, by the idea that some top lawyers are more qualified than others.
There are many ways to view the lack of diversity on the Supreme Court, and the court comes up lacking in all of them.
It’s Whiter than the country. The current court is 80% White. The country is less than 62% White, according to the 2020 census, and getting more racially diverse every year.
It’s far more conservative than the country. Thanks to the timing of the deaths of two recent justices, six out of the nine justices were appointed by Republican presidents. By comparison, less than half the country is either Republican or leans Republican.
It’s more Eastern than the country. Excluding Stephen Breyer of California, who recently announced his retirement, there’s a justice from the South (Clarence Thomas), one who was born in Louisiana but lived in the Midwest (Amy Coney Barrett) and one who is from Colorado (Neil Gorsuch). The other five spent all or most of their lives and careers in the Northeast.
It’s more elite than the rest of the country. All the current justices went to Ivy League law schools, with the exception of Barrett, who went to the University of Notre Dame. In a country of more than 330 million people and with scores upon scores of public and private law schools, we have found a way to pick only people who went to one of three law schools.
And that’s another thing. In such a large country, there are many attorneys who are smart enough and qualified to be Supreme Court justices. The idea that the current nine are the smartest and most qualified is absurd. They were in the right place at the right time and were able to survive the confirmation process.
Cruz is not alone. Sen. Roger Wicker of Mississippi said Biden’s desire to pick a Black woman is a form of affirmative action. Sen. Susan Collins of Maine said she didn’t like the idea of Biden limiting his search to Black women.
Biden’s pledge is different from when Presidents Lyndon B. Johnson and Ronald Reagan nominated the first Black justice and the first female justice, respectively, according to Collins.
“What President Reagan said is, as one of his Supreme Court justices, he would like to appoint a woman,” Collins told ABC News on Sunday. “And he appointed a highly qualified one in Sandra Day O’Connor.”
Then there’s Sen. Josh Hawley of Missouri, who said Tuesday that it was a “mistake” for Biden to “basically say you have a quota.” His response when pressed about the fact that Reagan did the same thing? That was “ancient history,” per Hawley.
Reagan actually did promise to pick a woman. Let’s take a look at the Reagan example. He promised during the 1980 presidential campaign to nominate a woman specifically to ward off accusations about his attitude toward women.
Here’s how The Washington Post reported on the news conference in 1980 where Reagan promised to nominate a woman:
“One of the accusations has been that I am somehow opposed to full and equal opportunities for women in America,” Reagan said. “I regret even having to address this issue for fear that discussing it might lend even a scintilla of credence to such a charge.”
Reagan then said he opposed “tokenism and false quotas” to correct past injustices. But he added: “I am also acutely aware, however, that within the guidelines of excellence, appointments can carry enormous symbolic significance. This permits us to guide by example – to show how deep our commitment is and to give meaning to what we profess. One way I intend to live up to that commitment is to appoint a woman to the Supreme Court.”
Compare that with Biden’s words when he pledged, again, at Breyer’s retirement announcement, to nominate a Black woman.
“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,” Biden said. “It’s long overdue, in my view. I made that commitment during the campaign for president, and I will keep that commitment.”
LBJ engineered the opportunity to pick a Black man. Let’s look back farther than the Reagan era. Thurgood Marshall’s race was not overtly mentioned during White House remarks by Johnson announcing his nomination in 1967.
“I believe he earned that appointment; he deserves the appointment,” Johnson said. “He is best qualified by training and by very valuable service to the country. I believe it is the right thing to do, the right time to do it, the right man and the right place.”
What’s more interesting is how Johnson created the opportunity to appoint Marshall during the civil rights era.
According to a book by the journalist Wil Haygood, “Showdown: Thurgood Marshall and the Supreme Court Nomination That Changed America,” these were Johnson’s moves to create the vacancy:
- He pressured his attorney general, Nicholas Katzenbach, to resign and put him in a new job at the State Department.
- He nominated Ramsey Clark as his attorney general.
- Clark’s confirmation created a conflict of interest for his father, the Supreme Court Justice Tom Clark, who resigned.
- Tom Clark’s resignation opened up a spot for Marshall.
Read more from The Washington Post.
Opponents of affirmative action. When Marshall resigned, reporting at the time suggested that President George H.W. Bush was focused on replacing him with a Black man.
“The pressure to appoint a black is going to be pretty heavy,” a senior White House official told The New York Times at the time, “given the civil rights fight and also because people honestly believe that in this case we have one – Thomas – who is a good candidate in his own right.”
Bush publicly rejected the idea that he felt pressure to nominate a Black justice to succeed the court’s first Black justice.
Here’s how The Baltimore Sun wrote about it:
The president told reporters: “I don’t feel I had to nominate a black American at this time for the court. … The fact that he’s a minority, so much the better. But that is not the factor. … If credit accrues to him for coming up through a tough life as a minority in this country, so much the better.”
Mr. Bush said he would “strongly resent any charge that might be forthcoming on quotas. … I don’t feel that there should be a ‘black seat’ on the court.”
Thomas, in his career before his nomination and as a Supreme Court justice, has been hostile to the idea of affirmative action, or giving opportunities to people from underrepresented portions of society. It is something the court will consider again in the session that begins in October, when it weighs in on admissions at Harvard – where so many of the justices went to school – and the University of North Carolina.
Litmus tests abound. There are also plenty of examples of presidents making requirements for their nominations.
President Donald Trump promised to nominate a woman to fill the late Ruth Bader Ginsburg’s seat. He nominated Barrett.
He promised to pick justices who are “pro-life,” and today the court is poised to overturn or weaken Roe v. Wade.
Cruz and Wicker were fine with those nominees. Collins opposed Barrett because her nomination happened too close to a presidential election.
No matter whom Biden nominates, most Republicans will oppose that person, just as most Democrats will oppose any Republican nominee. On that point, the recent history is clear.