This story has been updated to include a response from the White House.
The first Black woman to sit on the U.S. Supreme Court in history will be a “beneficiary” of affirmative action, U.S. Sen. Roger Wicker told a radio show this afternoon. The senior Republican senator from Mississippi made clear that he has no plans to vote for Biden’s yet-to-be-announced pick.
Biden has vowed to select a Black woman to replace outgoing Justice Stephen Breyer, who announced his retirement yesterday.
“The irony is that the Supreme Court is at the very time hearing cases about this sort of affirmative racial discrimination while adding someone who is the beneficiary of this sort of quota,” Wicker told host Paul Gallo on SuperTalk Mississippi Radio today, referring to a pending U.S. Supreme Court case challenging affirmative action in college admissions.
“The majority of the court may be saying writ large that it’s unconstitutional. We’ll see how that irony works out.”
‘Not A Single Republican Vote’
Wicker notably did not raise an objection when former President Donald Trump vowed to appoint a woman to replace Justice Ruth Bader Ginsburg when she died weeks before the 2020 election. Instead, the GOP senator enthusiastically supported Trump’s choice, Amy Coney Barrett, a white woman, despite having stated in 2016 that then-President Barack Obama should not be allowed to appoint a U.S. Supreme Court justice in an election year. Studies show that white women benefit more from affirmative action than any other group.
Despite not knowing who Biden will nominate, Mississippi’s senior senator predicted that Biden’s pick will be less palatable to Republicans like himself than the white, male justice who currently holds the seat. He compared the unannounced nominee to Justice Sonia Sotomayor, who became the high court’s first Latina justice when former President Barack Obama appointed her in 2009.
“We’re going to go from a nice, stately liberal to someone who’s probably more in the style of Sonia Sotomayor,” Wicker said. “… I hope it’s at least someone who will at least not misrepresent the facts. I think they will misinterpret the law.”
Then, he lamented that more Republicans did not turn out to help re-elect former President Donald Trump in 2020.
“You know, for those people who vote Republican and were just a little uncomfortable voting for Trump last time because they had a problem with his demeanor, this is what you get. We’ll have 30 years of a left-wing judge when we could have had, at some point, another stellar member like the three we got recently, particularly Amy Coney Barrett and Brett Kavanaugh,” Wicker said, referring to two of the three white justices Trump appointed.
“I guarantee you this, Paul, this new justice will probably not get a single Republican vote, but we will not treat her like the Democrats did Brett Kavanaugh. It was one of the most disgraceful, shameful things and completely untruthful things that the Democratic Judiciary majority has ever, ever done.”
When Trump nominated Kavanaugh in 2018, he faced allegations of sexual misconduct, with Christine Blasey Ford testifying under oath to the U.S. Senate that the nominee once tried to rape her at a party when he was younger. Despite her testimony, the U.S. Senate confirmed Kavanaugh with only one Republican opposing his nomination. Wicker and Mississippi’s other U.S. senator, Cindy Hyde-Smith, both voted to confirm Kavanaugh.
Reagan Promised to Appoint Woman to High Court
Even aside from Trump’s 2020 vow to appoint a woman to replace Ginsburg, Biden’s pledge to announce a historic appointment is not unprecedented. As a Republican presidential candidate in 1980, Ronald Reagan promised to appoint the first woman to the court in history. He appointed Justice Sandra Day O’Connor, a white woman.
Since then, four more women have sat on the U.S. Supreme Court, all of them white except Sotomayor.
Only two Black justices have ever sat on the U.S. Supreme Court: Thurgood Marshall, who Democratic President Lyndon B. Johnson appointed in 1967; and Clarence Thomas, whom Republican President George H. W. Bush appointed to replace Marshall in 1991. Thomas remains on the court.
Like Kavanaugh, Thomas joined the court amid allegations of sexual misconduct during his nomination, with law professor Anita Hill testifying under oath the he subjected her to sexual harassment at work.
When Biden announced Breyer’s retirement yesterday, he said he plans to announce Breyer’s replacement before the end of February.
“While I’ve been studying candidates’ backgrounds and writings, I’ve made no decisions except one: The person I will nominate will be someone with extraordinary qualifications, character, experience, and integrity, and that person will be the first Black woman ever nominated to the United States Supreme Court,” Biden said.
“It’s long overdue, in my view. I made that commitment during the campaign for president, and I will keep that commitment.”
UPDATE: After the Mississippi Free Press broke this story on Friday, Jan. 28, White House Deputy Press Secretary Andrew Bates sent the following statement to the reporter on Saturday morning:
“President Biden’s promise that he would nominate and confirm the first Black woman to the Supreme Court is in line with the best traditions of both parties and our nation. When President Reagan honored his campaign pledge to place the first woman on the court, he said it ‘symbolized’ the unique American opportunity ‘that permits persons of any sex, age, or race, from every section and every walk of life, to aspire and achieve in a manner never before even dreamed about in human history.’
“President Biden has established one of the strongest track records ever when it comes to choosing extraordinarily qualified and groundbreaking nominees—as the American Bar Association ratings for his 42 confirmed nominees demonstrate. What’s more, when the previous president followed through on his own promise to place a woman on the Supreme Court, Senator Wicker said, ‘I have five granddaughters, the oldest one is 10. I think Justice Amy Coney Barrett will prove to be an inspiration to these five granddaughters and to my grown daughters.’ We hope Senator Wicker will give President Biden’s nominee the same consideration he gave to then-Judge Barrett.”
Correction: The original version of this story misspelled Thurgood Marshall. We apologize for the typo.