Last week, following Supreme Court Justice Stephen Breyer’s retirement announcement, President Biden reaffirmed his campaign promise to nominate the first Black woman to the highest court in the country and will announce his choice by the end of the month. Ever since, as you might’ve guessed, Republican Senators who will be voting on Biden’s nominee have really said the quiet part out loud, suggesting that there’s not a Black woman in the country who could possibly be the best pick for the role.
Sen. Roger Wicker (R-Miss.) kicked things off by condescendingly comparing Biden’s pledge to affirmative action in a Friday appearance on a Mississippi radio program. “The irony is the Supreme Court, at the very same time, is hearing cases about this sort of affirmative racial discrimination and while adding someone who is the beneficiary of this sort of quota,” he said.
Ted Cruz, who apparently has a podcast, chimed in on the issue in a new episode on Monday, calling Biden’s decision “offensive” and “an insult to Black women,” while ironically insulting Black women himself.
“Black women are, what, 6% of the U.S. population? He’s saying to 94 percent of Americans, ‘I don’t give a damn about you, you are ineligible,’” Cruz said, because the appointment of a Black woman, rather than the appointments of her almost exclusively Ivy League-educated, white male predecessors, is presumably the real exclusionary act, here.
“It’s actually an insult to Black women, if he [Biden] came and said ‘I’m going to put the best jurist on the court’, and he looked at a number of people and he ended up nominating a Black woman he could credibly say ‘OK, I’m nominating the person who is most qualified.’ He’s not even pretending to say that,” Cruz continued, echoing Wicker’s sentiment that the Black women on Biden’s shortlist are just innately unqualified. “He’s saying if you’re a white guy, tough luck. If you’re a white woman, tough luck, you don’t qualify.”
All of the candidates who are reportedly on Biden’s shortlist are, if anything, over-qualified. Wicker and Cruz’s conclusions are transparently drawn from their opinions of Black women, more so than any actual appraisal of these women’s absolutely stacked résumés. Nor do they seem particularly interested in the inconvenient truth that about 99% of Supreme Court Justices were nominated solely for being white men—that, or to advance white male supremacy and contribute to the conditions that have prevented a Black woman from ever holding a seat on the court.
It’s not just Trump loyalists who are melting down over Biden’s promise to make the Supreme Court become vaguely more reflective of America. Sen. Susan Collins—the same senator who was convinced that Brett Kavanaugh would respect Roe v. Wade—also expressed concerns over the weekend.
Collins claimed she “would welcome the appointment of a Black female to the court,” but that Biden is handling Breyer’s replacement in a manner that “adds to the further perception that the court is a political institution like Congress, when it is not supposed to be.”
To be clear, whether or not it’s supposed to be, the Supreme Court is absolutely a “political institution” because an apolitical one wouldn’t be coming for our reproductive rights. And if Collins sees Biden’s pledge to nominate a Black woman to the court as inherently “political,” that’s only because of the instinctive politicization of non-white, male identities.
When faced with the nearly identical comparison of President Reagan’s pledge to nominate a woman to the Supreme Court, which he fulfilled by nominating Justice Sandra Day O’Connor, Collins argued that it was problematic for Biden to have made this pledge as a candidate. Of course, this is nothing new—presidential candidates have always made pledges about their judicial nominees. Donald Trump repeatedly pledged to appoint Justices dedicated to overturning Roe, and Collins voted to confirm all of them.
Whoever Biden nominates, the court will continue to hold a 6-3 conservative majority, and stands to issue devastating rulings on abortion, immigration, civil rights, and more issues that have historically carried the most harm for marginalized people, and Black women, in particular. But however cynical we may be at this point, Biden’s pledge is an important step considering how rarely Black women are appointed to the federal judiciary, let alone the highest court in the country.