WASHINGTON ― Democrats are urging Republicans not to make the fight over President Joe Biden’s forthcoming pick to replace Supreme Court Justice Stephen Breyer about race, warning it could backfire for the party.
“I think they’d be foolish to” focus on race, Sen. Tim Kaine (D-Va.), a member of the Senate Judiciary Committee, told HuffPost. “Trying to minimize a person because she happens to be a woman of color ― I don’t see that as much of a strategy.”
As a presidential candidate, Biden pledged to nominate the first Black woman to the Supreme Court, a vow he reaffirmed after Breyer announced he would be stepping down later this year. The promise has already drawn criticism from some GOP senators.
Sen. Roger Wicker (R-Miss.), speaking in a radio interview last week, declared that whomever Biden picks would be a beneficiary of “affirmative racial discrimination.” He also feared that the court would be replacing a “nice, stately” justice like Breyer, who is white, with a more outspoken voice like that of Sonia Sotomayor, the first Hispanic Supreme Court justice.
Sen. Ted Cruz (R-Texas), meanwhile, called Biden’s commitment to pick a Black woman to the high court “offensive” and “insulting” to Black and white Americans alike.
“He’s saying, ‘If you’re a white guy, tough luck. If you’re a white woman, tough luck. You don’t qualify,’” Cruz said on his podcast this week.
Of the 115 Supreme Court justices who have served since the institution was established in 1789, 108 have been white men.
Democrats have sought to make the federal bench more diverse since taking the Senate majority last year by confirming dozens of nominees, including historic firsts with Native Americans, Black women, LGBTQ nominees and Muslim Americans.
The White House has said it is considering a list of potential nominees to the Supreme Court, including U.S. District Judge J. Michelle Childs of South Carolina, U.S. Court of Appeals Judge Ketanji Brown Jackson, California Supreme Court Justice Leondra Kruger and civil rights attorney Sherrilyn Ifill.
Presidents of both parties have prioritized race, gender and the ethnicity of candidates in choosing nominees to the high court. President Ronald Reagan pledged to appoint the first woman to the court before taking office, for example. He later followed through by appointing Sandra Day O’Connor.
Former President Donald Trump vowed to appoint a woman to the court after the death of Justice Ruth Bader Ginsburg. He did so later with Justice Amy Coney Barrett. Trump also pledged to nominate only candidates with anti-abortion views to the court, and he pledged to only name justices from a list of white candidates approved by the conservative Federalist Society.
Sen. Lindsey Graham (R-S.C.) on Sunday pushed back against the notion that Biden’s vow to nominate the first Black woman to the high court was akin to affirmative action. He said doing so would make the court “look more like America.” The senator has all but endorsed Childs, who also hails from South Carolina, for the job.
Still, other Republicans who serve on the Judiciary Committee, which will have an opportunity to grill the eventual nominee, have continued to criticize Biden over the promise.
Sen. John Cornyn (R-Texas) said Biden had every right to nominate a person as he saw fit, but he worried the president might “tie his own hands” by limiting the pool of available candidates for the job.
“If you’re Asian, you’d say, ‘I guess I can’t compete with this nomination because he’s decided to pick an African American,’” Cornyn said.
GOP senators met in Senate Minority Leader McConnell’s (R-Ky.) office on Tuesday to hash out strategy regarding the forthcoming Supreme Court nomination, which isn’t expected to be made public until later this month. Afterward, McConnell told reporters that he anticipated his colleagues would treat the person with respect.
Iowa Sen. Chuck Grassley, the top Republican on the Judiciary Committee, added that he would like to avoid a contentious process like the 2018 hearings for Supreme Court Justice Brett Kavanaugh, who was accused of sexual misconduct.
“I think you’re not going to find Republicans getting in the gutter like the Democrats did with Kavanaugh,” Grassley said, according to CNN.
The confirmation of Breyer’s successor may not be as heated as past Supreme Court fights because it isn’t expected to change the ideological balance of the court, which is currently tilted toward conservatives at 6-3. Getting into an ugly fight over race could also harm Republican prospects for retaking control of the Senate in November, something they are singularly focused on right now.
Still, that hasn’t stopped some on the right from launching racist attacks against other Biden nominees who happen to be people of color, including Lisa Cook, a professor of economics and international relations who would be the first Black woman to serve on the Federal Reserve’s seven-member board of governors if confirmed to the position. Trump allies have gone after Cook, calling her unqualified and her appointment “race-based.”
“The Republicans have already moved beyond racial dog whistles and directly to racial sirens. They’ve done it for a Supreme Court nominee before anyone has been named. They have also done it on the Fed nominees,” Sen. Elizabeth Warren (D-Mass.) told HuffPost. “The Republicans have decided they would rather stir up an ugly portion of their base rather than try to evaluate these candidates on their own.”
Sen. Richard Blumenthal (Conn.), another Democrat who serves on the Judiciary Committee, predicted that the upcoming Supreme Court fight will be a “revealing moment” for the GOP.
“Republicans will have a hard time saying no” to the nominee because of their qualifications, Blumenthal said. “They will especially have a difficult path trying to raise race.”