When news landed last week that there would be a Supreme Court vacancy for President Biden to fill, some in the right-wing pundit class sprang into action, saying Biden’s promise to fill the slot with a Black woman amounted to discrimination — even affirmative action or a quota.
But now it’s become increasingly clear that it will — albeit apparently not in unison.
Sen. Roger Wicker (R-Miss.) got the ball rolling by telling a local conservative radio host that he expected Republicans to all vote against the still-unnamed pick. “The irony is that the Supreme Court is at the very same time hearing cases about this sort of affirmative racial discrimination,” Wicker said, “while adding someone who is the beneficiary of this sort of quota.”
Sen. Susan Collins (R-Maine) offered a somewhat gentler version of the argument, calling Biden’s promise “clumsy” and saying, “It adds to the further perception that the court is a political institution like Congress, when it is not supposed to be.”
Collins was pressed on a similar promise Ronald Reagan had made in 1980 to nominate a woman to the court. She maintained that what Biden did was different because it was done “as a candidate.”
In fact, Reagan also made his promise as a candidate.
While Collins is a key vote in the full Senate, neither she nor Wicker serves on the Judiciary Committee, which will vet the nominee at confirmation hearings. But others who do signaled that they might press the issue.
The q-word was also invoked this weekend by Sen. Ted Cruz (R-Tex.).
“I got to say: That’s offensive,” Cruz said on his podcast. “Black women are, what, 6 percent of the U.S. population? He’s saying to 94 percent of Americans: ‘I don’t give a damn about you. You are ineligible.’ ”
The far Left doesn’t care about the individual, they will pigeonhole you, & they will discriminate based on race.— Ted Cruz (@tedcruz) January 30, 2022
On the latest episode of #Verdict with @michaeljknowles, I discuss Joe Biden’s offensive Supreme Court promise.
The full episode is out now:https://t.co/ezeOTf9jHL pic.twitter.com/K3wfYlgM3z
Cruz compared it to the affirmative action that was used during his time at the Harvard Law Review.
“This is doing the same thing,” Cruz said. He added that “if you’re explicitly setting up a discriminatory quota, it’s unfair to everybody else, and it undermines whoever ends up getting asked.”
The argument seemed to echo one made by a conservative lawyer who said whoever is selected “will always have an asterisk attached” to their selection and would be a “lesser Black woman” than the supposed best pick. The lawyer deleted those and other tweets and apologized.
Sen. Josh Hawley of Missouri, like Cruz a Republican on the Judiciary Committee, told Fox News late last week that he didn’t want such picks to be the subject of a gender or racial “litmus test.”
(Hawley has said he had a litmus test for justices opposing Roe v. Wade, though, and he doesn’t appear to have complained when President Donald Trump made his own promise to nominate a woman to the court in 2020.)
Some Republicans, though, are trying to steer their party in a different direction.
Other senators have declined to raise the same concern. New Hampshire Gov. Chris Sununu (R) said Sunday: “I don’t see things as quotas like that, no. … You want folks with a diverse set of backgrounds, of course. So in that sense, no, I wouldn’t agree it’s a quota.”
Perhaps the key one is Sen. Lindsey Graham (R-S.C.), who sits on the Judiciary Committee with Cruz and Hawley and is the committee’s former chairman. He disagreed with Collins that Biden’s promise was somehow different from Reagan’s. And he suggested that Republicans need to be careful with this.
“Put me in the camp of making sure the court and other institutions look like America,” Graham said. “You know, we make a real effort, as Republicans, to recruit women and people of color to make the party look more like America.”
Graham then seemed to caution against labeling this an affirmative-action hire, noting it would entail arguing that the Black woman who is eventually nominated isn’t as qualified.
“Affirmative action is picking somebody not as well qualified, for past wrongs,” Graham said, before pitching one of the front-runners, U.S. District Judge J. Michelle Childs of South Carolina, as a “highly qualified” and “fair-minded” judge.
Therein lies the GOP’s dilemma. On the one hand, this is an argument tailor-made for the Trump-era GOP, in which the idea that Democrats make everything about race is an article of faith and a huge political motivator. Cruz and Hawley, in particular, are very keen on appealing to that cross-section of the GOP.
On the other hand, pushing this line means drifting into territory Graham warned against — suggesting that whoever is picked will have that asterisk attached and might indeed be a “lesser Black woman.”
Graham and Cruz’s comments also spotlight the potential attractiveness of pushing this argument, though. Right now, it’s the subject of debate because we don’t actually have a nominee. But while Graham praised Fields, Cruz acknowledged that it might be difficult to fight against the person who perhaps is the front-runner, federal appeals court judge Ketanji Brown Jackson.
“As so many of the Biden nominees have had, she didn’t have these outrageously partisan statements. She didn’t have these wildly left-wing statements,” Cruz said of Jackson, who was his Harvard classmate. “I think more than a few people suspect those may be her sentiments, but she hasn’t left much of a paper trail. … So it’s hard to find something tangible in her record to object to.”
The situation the GOP confronts is in potentially voting overwhelmingly against the first Black woman to ever serve on the Supreme Court, and potentially without a go-to attack on her record. Arguing about the process for the pick and perhaps voting against it based upon that could be an attractive fallback for some of them — similar to when Senate Republicans voted against convicting Trump at his second impeachment trial on a technicality.