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Why Republicans Oppose Biden’s Promise To Nominate The First Black Woman To The Supreme Court

It didn’t take long after Justice Stephen Breyer announced his retirement for conservative politicians and pundits to criticize President Biden’s campaign pledge to nominate the first Black woman to the Supreme Court. Republican Sen. Ted Cruz of Texas denounced Biden’s promise as “offensive” while GOP Sen. Roger Wicker of Mississippi preemptively dismissed the prospective nominee as benefitting from a racially discriminatory “quota.” On Fox News, Sean Hannity slammed Biden’s pledge as “identity politics on steroids.”

But many astute analysts promptly pointed out that Republicans haven’t objected to prior presidents’ pledges to nominate a woman to the Supreme Court. There was no equivalent outcry, for instance, when President Ronald Reagan vowed to appoint the first woman to the Supreme Court during the 1980 presidential campaign — a promise he fulfilled the following year by nominating Sandra Day O’Connor. Nor was their condemnation of former President Donald Trump’s pledge to nominate a woman to fill the late Ruth Bader Ginsburg’s seat in September 2020. 

As Stanford professor and FiveThirtyEight contributor, Hakeem Jefferson, tweeted, “Conservatives didn’t get upset when Trump promised to nominate a woman to the bench because the qualifier ‘white’ was simply implied.” He later added that it’s the misogynoir, or unique biases Black women experience, not the pledge, that is the problem.

Recent polling data certainly seems to support Jefferson’s argument. Take, for example, Republican responses to the two YouGov polling questions about the importance of nominating a woman and the importance of nominating a Black woman to fill vacated SCOTUS seats in 2020 and 2022, respectively.

The chart above shows that more than half of Republicans and over three-quarters of Democrats thought it was important to have a female justice replace Ginsburg in a September 2020 YouGov/Yahoo Poll conducted a few days before Trump nominated Amy Coney Barrett to fill her seat. But while a similarly large share of Democrats said it’s very or somewhat important to have a Black woman replace Breyer in a January 2022 YouGov survey, only 13 percent of Republicans said the same about Biden nominating a Black woman.      

Of course, there are other factors that may be driving Republicans’ divergent responses in that chart besides including the word “Black” before woman in the 2022 polling. Trump’s 2020 nominee, after all, was filling a Supreme Court seat held for over a quarter-century by a feminist icon, who was only the second woman to ever serve on the high court. That could have easily amplified the importance of nominating a woman more than replacing Breyer, a male justice.1

Yet there are good reasons to nonetheless suspect that Republicans are uniquely opposed to presidential pledges in support of African Americans — especially when they’re made by Democratic presidents. In fact, a similar pattern emerged in a May 2009 CNN/ORC poll, which asked respondents to rate the importance of race and gender in then-President Barack Obama’s forthcoming pick to fill the Supreme Court seat vacated by Justice David Souter’s retirement. Just 14 percent of Republicans said it was important Obama nominate an African American to the Supreme Court. 

To be sure, both Democrats and Republicans were nearly twice as likely to say it was important for Obama to pick a woman than they were to say it was important for him to nominate an African American to the Supreme Court, as you can see in the chart below. But unlike Democrats who have experienced a sharp uptick in the share who think a Black person should be nominated to the court since 2009, the share of Republicans who agree is practically unchanged.

This is yet another reminder of the remarkable shift partisans’ racial attitudes have undergone in the past decade. Several surveys show that the share of white Democrats who view systemic racism as an impediment to Black progress has skyrocketed in recent years. It’s no surprise, then, that the overwhelming majority of Democrats (82 percent) support “President Biden’s plan to nominate a Black woman to the United States Supreme Court” — especially when Democratic leadership frames the nomination as combatting the same structural biases that have excluded African American women from the high court throughout the nation’s history.   

Republicans, meanwhile, have moved in the opposite direction on race. As I wrote in a previous piece for FiveThirtyEight, GOP politics are increasingly animated by the belief that anti-white discrimination is as big of a problem in American society as biases against racial and ethnic minorities. Those views helped fuel Trump’s rise within the party; and they factor heavily into conservatives’ mischaracterization of critical race theory, an academic framework that helps explain how racism permeates American institutions, as an anti-white “existential threat to the United States.” Few Trump voters (19 percent) approve of Biden’s pledge — especially when prominent Republicans frame it as a racially discriminatory appointment of an unqualified justice who doesn’t “know a law book from a J. Crew catalog.” That is, of course, patently false as FiveThirtyEight’s Amelia Thomson-DeVeaux and Elena Mejía wrote in a recent analysis of Biden’s judicial appointees so far.

But understanding the power racial grievances have in GOP politics today goes a long way in understanding why Republicans are so strongly opposed to Biden’s pledge to nominate the first Black woman to the Supreme Court. As Republican Sen. John Kennedy of Louisiana recently said, “I want a nominee who’s not going to try to rewrite the Constitution every other Thursday to try to advance a ‘woke agenda.’” And undoubtedly, the race, gender and partisanship of Biden’s prospective pick all intersect with one another to heighten these Republican fears of “wokeness” run amok in ways that nominees of other identities almost certainly would not.

Footnotes

  1. In addition, the January 2022 poll mentions Biden’s pledge before asking about the importance of nominating a Black woman; and political science research has found that providing such information about the president’s positions often increases opposition from the other party.

Michael Tesler is a professor of political science at University of California, Irvine, author of “Post-Racial or Most-Racial? Race and Politics in the Obama Era” and co-author of “Identity Crisis: The 2016 Presidential Campaign and the Battle for the Meaning of America.”

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