Fact Check: Biden is not the first president to limit SCOTUS search to specific demographics

By Tara Subramaniam, CNN

President Joe Biden’s commitment to nominate a Black woman as a replacement for retiring Supreme Court Justice Stephen Breyer has been criticized as “reverse racism” in several outlets, with some conservatives even calling Biden’s decisions “definitionally affirmative action.”

But Biden is not the first president to limit his search or shortlist to a certain demographic. Actually, it’s not uncommon for Republican presidents to establish early on in their tenure the kind of justice they would nominate — or even to campaign for office on such specific commitments.

Ronald Reagan

Less than a month before the 1980 election, Reagan promised that “one of the first Supreme Court vacancies in my administration will be filled by the most qualified woman I can possibly find.”

Reagan fulfilled his promise six months into his presidency when he nominated Sandra Day O’Connor, who became the first woman to serve on the Supreme Court.

Michael Deaver, who served as Reagan’s deputy chief of staff at the time of the nomination, recalls that Reagan had told him to “find a woman who was qualified, and come back and discuss it if that wasn’t possible,” as former Washington Post correspondent Lou Cannon writes in his book about Reagan’s presidency, “President Reagan: The Role of A Lifetime.”

When announcing O’Connor’s nomination, Reagan addressed his campaign promise and said that it did not mean he “would appoint a woman merely to do so.”

Instead, he said, “I pledged to appoint a woman who meets the very high standards that I demand of all court appointees. I have identified such a person.”

Some Republicans say Biden’s commitment cannot be equated with Reagan’s because Reagan did not say he would only consider women.

Republican Sen. Susan Collins, for one, said that Biden’s situation “isn’t exactly the same” as what Reagan did.

“What President Biden did was, as a candidate, make this pledge. And that helped politicize the entire nomination process,” the Maine Republican said on ABC’s “This Week” on Sunday. “What President Reagan said is, as one of his Supreme Court justices, he would like to appoint a woman, and he appointed a highly qualified one in Sandra Day O’Connor.”

Though Reagan did not specify that the first Supreme Court vacancy he filled would be a woman, it’s misleading for Collins to suggest his overall promise to appoint a woman did not politicize the nomination process and influence his choice. When Reagan learned in the spring of 1981 that Justice Potter Stewart would be retiring that summer, he told top aides of his preference for a woman nominee.

George H.W. Bush

When then-President George H.W. Bush announced Clarence Thomas as his pick in 1991, he said he was “picking the best man for the job on the merits.” Bush said the fact that Thomas was “Black and a minority” had “nothing to do with this in the sense that he is the best qualified at this time.”

But the seat had previously been held by Thurgood Marshall, the first Black Supreme Court justice, and Bush administration officials told the Washington Post at the time that the search focused “almost exclusively on minority or female candidates.” In fact, the other two main contenders were Edith H. Jones, a female appellate judge from the 5th Circuit Court of Appeals, and Emilio M. Garza, a Hispanic judge also from the 5th Circuit.

Donald Trump

Even Biden’s Republican predecessor limited the contenders for one of his Supreme Court nominations by gender — or at least he suggested that may have been the case.

A day after Justice Ruth Bader Ginsburg’s death in 2020, then-President Donald Trump announced that he’d select a woman to fill her seat, saying: “I will be putting forth a nominee next week. It will be a woman.”

Trump ultimately nominated federal appeals Judge Amy Coney Barrett. Sources told CNN Trump also considered Judge Barbara Lagoa, but it’s unclear whether Trump’s shortlist for Ginsburg’s replacement included any men.

While Trump did not campaign on a promise of nominating a person from a specific demographic group, he did run on a promise to nominate someone with a particular ideology and, more specifically, from a particular small list of conservative judges.

Ahead of the 2016 election, Trump said that if elected and given the opportunity to put someone on the bench, he was committed to picking from a list of 21 conservative jurists compiled by the right-leaning think tank The Heritage Foundation and the Federalist Society, a conservative-learning organization with a special interest in selecting conservative judges for the courts.

Trump’s first Supreme Court appointee, Neil Gorsuch, was among those original 21 names. In November 2017, Trump released a revised list with some additional names, which included both Barrett and Brett Kavanaugh, who filled Justice Anthony Kennedy’s seat. Shortly before Kennedy announced his retirement, Trump reiterated his commitment to replacing him with someone from “that list.”

Trump also established an additional ideological parameter for any of his future Supreme Court nominees during the campaign when he said during the October 2016 presidential debate that he “will be appointing pro-life judges,” if elected.

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