Biden Promise on SCOTUS Nominee Not Unique – FactCheck.org

While running for president in 1980, Ronald Reagan pledged at a campaign event that “one of the first Supreme Court vacancies in my administration will be filled” by a woman, saying it’s “time for a woman to sit among our highest jurists.” And President Donald Trump, while running for reelection, announced at a campaign rally that he would appoint a woman.

In a recent interview, Sen. Susan Collins said President Joe Biden “helped politicize the entire nomination process” by promising as a candidate in 2020 to appoint a Black woman to the court. She said what Reagan and Trump did “isn’t exactly the same.”

But her opinion runs counter to the facts, especially in Reagan’s case.

Collins made her remarks on ABC’s “This Week,” when asked about the opening on the court created by Justice Stephen Breyer’s Jan. 27 announcement that he would retire when the court goes into its summer recess, which usually occurs in late June or early July. The same day, Biden reiterated his campaign pledge to appoint a Black woman.

Collins called Biden’s handling of the court opening “clumsy at best.” She said, “It adds to the further perception that the court is a political institution like Congress when it is not supposed to be.” The host, George Stephanopoulos, asked how Biden’s handling of the appointment has been different than what Reagan and Trump did.

Stephanopoulos, Jan. 30: You say that it’s clumsy. But isn’t, as Sen. Durbin pointed out, isn’t it exactly what President Reagan did when he said he would appoint a woman to the Supreme Court? Isn’t it exactly what President Trump did when he said he would appoint a woman to replace Justice Ruth Bader Ginsburg?

Collins: Actually, this isn’t exactly the same. I’ve looked at what was done in both cases. And what President Biden did was as a candidate, make this pledge. And that helped politicize the entire nomination process.

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.

Collins was right when she said that Biden made his pledge “as a candidate” — but she failed to mention that so did Reagan.

Reagan did so at a campaign press conference on Oct. 14, 1980, held to address what he called a “number of false and misleading accusations” – including an accusation “that I am somehow opposed to full and equal opportunities for women in America.”

And Collins mischaracterized what Reagan said. He didn’t say “he would like to appoint a woman.” He said “one of the first Supreme Court vacancies in my administration will be filled” by a woman.

As a sitting president, Trump’s situation was somewhat different than either Reagan or Biden, although the political context was the same.

Trump was president when an unexpected court vacancy occurred on Sept. 18, 2020, when Justice Ruth Bader Ginsburg died. But Trump was running for reelection, and he made his pledge to appoint a woman at a Sept. 19, 2020, campaign rally about six weeks before the Nov. 3, 2020, general election. 

Let’s look at each candidate’s pledge.

Biden: ‘It’s Long Past Time’

During a Democratic presidential debate in South Carolina, the candidates were asked the same two-part question: “First, I’d like you each to tell us … the biggest misconception about you. … Number two, the South Carolina motto is this. ‘While I breathe, I hope.’ … [W]hat is your personal motto, your personal belief, your favorite quote that represents you?”

In his response, Biden pledged to nominate a Black woman to the Supreme Court.

Biden, Feb. 25, 2020: When you get knocked down, get up. And everyone is entitled to be treated with dignity, no matter what, no matter who they are.

My — also, that everyone should be represented. Everyone — and no one’s better than me and I’m no better than anyone else. The fact is, what we should be doing — we talked about the Supreme Court. I’m looking forward to making sure there’s a Black woman on the Supreme Court, to make sure we in fact get every representation.

He repeated, and expanded upon, that pledge the next day at a press conference where he accepted Rep. James Clyburn’s endorsement in South Carolina. Biden said, “I’d be honored, honored to appoint the first African American woman” to the Supreme Court, echoing Reagan’s words in 1980 about it being “time for a woman.”

Biden, Feb. 26, 2020: And, look, in terms of making everything, the corridors of powers, reflect what America looks like — that includes the White House, that includes the staff there. That includes the Cabinet and that includes the Supreme Court and the Congress. Our administration was able to appoint the first Latina to the Supreme Court — a woman I asked to swear me in privately before the public swearing-in, Justice [Sonia] Sotomayor.

As president, I’d be honored, honored to appoint the first African American woman to the court because it should look like the country. It’s long past time.

Biden, of course, promised to fulfill that pledge at his recent press conference with Justice Breyer.

Biden, Jan. 27: I will select a nominee worthy of Justice Breyer’s legacy of excellence and decency.

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.

It’s long overdue, in my view. I made that commitment during the campaign for president, and I will keep that commitment.

I will fully do what I said I’d do: I will fulfill my duty to select a justice not only with the Senate’s consent, but with its advice. …

I’ll also consult with leading scholars and lawyers. And I am fortunate to have advising me in this selection process Vice President Kamala Harris. She’s an exceptional lawyer, a former attorney general of the state of California, a former member of the Senate Judiciary Committee.

I will listen carefully to all the advice I’m given, and I will study the records and former cases carefully. I’ll meet with the potential nominees. And it is my intention — my intention to announce my decision before the end of February.

Some have criticized Biden for making such a pledge. Sen. Ted Cruz said on his podcast, “Verdict with Ted Cruz,” that he found it “offensive” to consider only Black women for the high court position.

“The fact that he is willing to make a promise at the outset that it must be a Black woman I’ve got to say that’s offensive,” the Texas Republican said. “Black women are what, 6% of the U.S. population? He’s saying to 94% of Americans, ‘I don’t give a damn about you, you are ineligible.’”

Cruz ignores the fact that 108 of the 114 Supreme Court seats in U.S. history have been filled by white men, according to CNN. That’s 95% of all appointments. There have been only three white women, two Black men, one Hispanic woman and, of course, no Black women, per CNN.

And what Biden did was very similar to Reagan’s campaign announcement 42 years ago.

Reagan: ‘It Is Time for a Woman’

As a presidential candidate, Reagan held a press conference on Oct. 14, 1980, to address what he called a “number of false and misleading accusations” – including an accusation “that I am somehow opposed to full and equal opportunities for women in America.”

After rattling off his record when he was governor of California, Reagan went on to make a promise to appoint a woman Supreme Court justice if he defeated President Jimmy Carter.

Reagan, Oct. 14, 1980: I oppose tokenism, and I oppose setting false quotas. My responsibility will be to make our government work better and to solve the critical problems facing America.

To achieve those ends, we need the best people possible at the highest levels of government, regardless of sex, race or religion. I am also acutely aware, however, that within the guidelines of excellence, appointments can carry enormous symbolic significance. This permits us to guide by example, to show how deep our commitment is and to give meaning to what we profess.

One way I intend to live up to that commitment is to appoint a woman to the Supreme Court. I am announcing today that one of the first Supreme Court vacancies in my administration will be filled by the most qualified woman I can find, one who meets the high standards I will demand for all my appointments.

It is time for a woman to sit among our highest jurists. I will also seek out women to appoint to other federal courts in an effort to bring about a better balance on the federal bench.

There will be no name announced, nor will I submit names to be considered until I have conducted a comprehensive search and have received the recommendations of an advisory committee of eminent legal and judicial experts.

The procedures they will be asked to follow are the same procedures I intend to establish for all judicial appointments. I am confident that this woman, whomever she may be, and all of my other women appointees, will contribute to the goals that I seek for America.

Stu Spencer was “Reagan’s chief strategist and architect of his campaign pledge,” according to a Feb. 1 article in the Los Angeles Times. Spencer told the paper that the pledge was about “seeking a solution to his deficit problem with women.”

Less than six months after he took office, Reagan announced that he would nominate Judge Sandra Day O’Connor to replace Justice Potter Stewart. (The retiring justice privately told Reagan in a May 1981 letter that “it is time to go” — although word of his retirement did not become public until June 1981, as reported by the Washington Post at the time.)

Reagan, July 7, 1981: After very careful review and consideration, I have made the decision as to my nominee to fill the vacancy on the United States Supreme Court created by the resignation of Justice Stewart. Since I am aware of the great amount of speculation about this appointment, I want to share this very important decision with you as soon as possible.

Needless to say, most of the speculation has centered on the question of whether I would consider a woman to fill this first vacancy. As the press has accurately pointed out, during my campaign for the presidency I made a commitment that one of my first appointments to the Supreme Court vacancy would be the most qualified woman that I could possibly find.

Now, this is not to say that I would appoint a woman merely to do so. That would not be fair to women nor to future generations of all Americans whose lives are so deeply affected by decisions of the court. Rather, 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.

He formally nominated O’Connor on Aug. 19, 1981, and the Senate voted 99-0 to confirm her about a month later. She took her seat as the first female member of the Supreme Court on Sept. 25, 1981.

In a brief interview with CNN, Collins explained how Reagan’s promise was different from Biden’s. “President Reagan said one of his Supreme Court justices would be a woman,” she told the CNN reporter. “You’re skipping what he … said.”

Actually, Reagan said it would be “one of the first Supreme Court vacancies,” and O’Connor was Reagan’s first appointment to the court.

Separately, the senator’s office sent us an opinion piece written by Jonathan Turley, a George Washington University law professor who was a Republican witness during the first impeachment against Trump. In that piece, Turley noted that Biden’s pledge excludes other races and, therefore, is discriminatory. In a 1977 affirmative action case, “The justices declared that preferring ‘members of any one group for no reason other than race or ethnic origin is discrimination for its own sake’ while adding that ‘this the Constitution forbids,’” he wrote.

Trump: ‘It Will Be a Woman’

A day after Justice Ginsburg died, Trump spoke at a campaign rally in Fayetteville, North Carolina.

Trump, Sept. 19, 2020: We said that if for any reason, we have a vacancy on the United States Supreme Court, we will fill that vacancy. We’re not going to say, and by the way, we have plenty of time. There’s a lot of time. You’re talking about January 20th.

So we will uphold equal justice under the law for citizens of every race, color, religion, and creed. I won’t be putting forth a nominee next week. It will be a woman. It will be a woman unless, wait, OK, let’s do a poll.

After about eight minutes of riffing on “corrupt” pollsters, TikTok, “crazy Democrats,” China and Russia, Trump said, “Let’s go back to my poll. Ready? So we’re putting, I think it should be a woman, because I actually like women much more than I like men, I have to say.”

He then riffed for a few more minutes on Hunter Biden’s business dealings before getting back to the “poll.”

Trump: So women and men, ready? Would you rather have a woman on the Supreme Court or would you rather have a man? Ready? A woman or a man.

So, would you rather have me choose, this is a very scientific poll. Actually, it’s a lot more accurate than these polls that interview like 97 people have been interviewed, then they charge you a million dollars and they probably don’t interview the people. They sit behind their desk. Would you rather have a woman on the Supreme Court? Yes, woman. Yes? … What’s going on? Let’s give it one more quick chance. This is a free poll. …

So one more time. Who would rather have a man on the Supreme Court? Who would have a woman on the Supreme? Now tomorrow, like fake news, CNN, he was playing games with the United States. It is a terrible thing he’s done. No, I’m just taking a poll, please. And by the way, that’s a very accurate poll, because that’s the way I feel. It will be a woman, a very talented, very brilliant woman. Who I haven’t chosen yet, but we have numerous women on the list. I built this incredible list of brilliant people.

With the election less than two months away, Trump moved quickly. Seven days after the rally, Trump announced he would nominate Judge Amy Coney Barrett, who was approved by the Republican-controlled Senate in a party-line 52-48 vote on Oct. 26, 2020 — eight days before the election.

In each case, the candidate making the pledge to nominate a woman did so in the heat of a political race.

Biden did so at a campaign press conference, while fighting for the Democratic nomination that seemed at the time to be slipping away. Trump, although the president, made his announcement at a campaign rally, while facing a tough reelection campaign that he ultimately lost a couple of months later. Reagan made his promise at a campaign event, while pushing back at a political narrative that he was not supportive of women’s rights.

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