Shortly after the news broke Wednesday that Justice Stephen G. Breyer is retiring, the editors of the conservative National Review lamented that President Biden had limited his options for a Supreme Court nominee by pledging to pick a Black woman for the job.
Within hours, the website Vox published a list of Black female jurists who could fill the job, and Sen. Ted Cruz (R-Tex.) took a swipe at former Georgia gubernatorial candidate Stacey Abrams, joking that she “announced she already won the SCOTUS nomination last year.”
Although some critics may dismiss it as pandering, a promise like this has a proven track record. Ronald Reagan vowed to put a woman on the Supreme Court. It was a key part of his campaign for president in 1980.
The Equal Rights Amendment, originally passed by Congress in 1972, had become a major issue. Though the 1979 deadline passed without ratification from two-thirds of states, as required, Congress had passed a three-year extension. President Jimmy Carter had signed it, but it was unclear whether the extension would hold up in the courts.
Then, at the Republican National Convention in Detroit, support for the ERA was removed from the party platform for the first time in 40 years.
It was an early indicator of the party’s shift to the right. Democrats saw women’s rights as an important issue they could use to bring moderate Republicans over to their side. They attacked Reagan’s record, noting his opposition to the ERA and abortion rights, and that Reagan had not appointed any women to his Cabinet while he was governor.
At a meeting with Republican women who supported the Equal Rights Amendment, Rep. Margaret Heckler (R-Mass.) suggested he consider a woman for the Supreme Court, saying, “This single step could demonstrate his avowed commitment to the equal rights of women.” She told The Washington Post’s Bill Peterson that Reagan appeared “receptive.”
A few months later, at a news conference in Los Angeles, he made it official, saying: “I am announcing today that one of the first Supreme Court vacancies in my administration will be filled by the most qualified woman I can possibly find. … It is time for a woman to sit among the highest jurists.”
The promise became a central part of his last three weeks on the campaign trail.
At a fundraiser in Boston, Carter criticized the vow as pandering, saying, “What he doesn’t seem to realize is that equal rights for women involves more than just one job for one woman.”
Later, Carter said it would be a mistake to promise to appoint any particular kind of American.
Post columnist Judy Mann wrote that any woman Reagan selected would probably be of a conservative bent anyway, joking that he might nominate conservative activist Phyllis Schlafly. Nancy Thompson, the former head of the Republican Women’s Task Force, noted the Reagan promise was “one of the first,” not “the first.”
“As far as I’m concerned, it’s just one more line,” Thompson said.
But it wasn’t. Weeks later, Reagan won the election, and by the next summer he had fulfilled the vow, nominating Judge Sandra Day O’Connor of the Arizona Court of Appeals to replace retiring Justice Potter Stewart.
And O’Connor was no Phyllis Schlafly. Though conservative, she proved to be a key swing vote in her 25 years on the high court. O’Connor retired in 2006.
Reagan never again nominated anyone but White men to the Supreme Court. Other presidents have elevated four more women — Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Amy Coney Barrett — and two Black men — Thurgood Marshall and Clarence Thomas — to the bench.
In fact, Biden played a key role in Thomas’s confirmation in 1991. He presided over Senate hearings where law professor Anita Hill alleged that Thomas had sexually harassed her when they were co-workers. And according to historians Daina Ramey Berry and Kali Nicole Gross in “A Black Women’s History of the United States,” it was Biden who refused to hear from witnesses corroborating her testimony. He shut down the hearings, Berry and Gross wrote, apparently over fears the committee looked racist.
Biden called Hill to apologize in 2019, but Hill told the New York Times she wasn’t satisfied.
“I will be satisfied when I know there is real change and real accountability and real purpose,” she said.
A version of this story was originally published on Feb. 26, 2020.