FACT CHECK: race, gender in SCOTUS nominee picks

Biden is not the first president to consider demographics.

January 31, 2022, 6:16 PM

Republicans are slamming President Joe Biden's pledge to nominate the first Black woman to the nation's highest court as "offensive" (Sen. Ted Cruz), tantamount to "affirmative action" (Sen. Roger Wicker), and downright "clumsy" (Sen. Susan Collins).

Fox News' Sean Hannity declared last week that race and gender have never been "the defining factor" in picking a Supreme Court nominee. The historic record shows that's simply not true.

Much of the early criticism of Biden's commitment to making a historic appointment of the first Black woman to the Supreme Court appears to reflect a selective accounting of history, desire to fan the flames of racial politics, or both.

"This is not the first time a president has signaled what they're looking for in a nominee," Senate Judiciary Committee Chair Richard Durbin, D-Ill., said Sunday on ABC's "This Week."

An ABC News review of the Supreme Court appointments over the last six decades found that many presidents of both parties have explicitly prioritized race, gender and ethnicity of candidates in choosing a nominee.

PHOTO: President Donald Trump, left, and Amy Coney Barrett, associate justice of the U.S. Supreme Court, during a ceremony on the South Lawn of the White House in Washington, D.C., Oct. 26, 2020.
President Donald Trump, left, and Amy Coney Barrett, associate justice of the U.S. Supreme Court, during a ceremony on the South Lawn of the White House in Washington, D.C., Oct. 26, 2020.
Ken Cedeno/CNP/Bloomberg via Getty Images, FILE

Just two days after the death of Justice Ruth Bader Ginsberg and just weeks before the 2020 election, then-President Donald Trump declared he would limit his search for her replacement to only qualified female candidates.

"It will be a woman -- a very talented, very brilliant woman," Trump said during a Sept. 20, 2020, rally in North Carolina. "We haven't chosen yet, but we have numerous women on the list." He went on to nominate now-Justice Amy Coney Barrett a month later.

As the GOP nominee challenging Jimmy Carter in 1980, Ronald Reagan publicly promised -- weeks before the election -- that he would name a woman to the Supreme Court if given the chance.

"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 possibly find," Reagan said at an Oct. 15 news conference in Los Angeles. "It is time for a woman to sit among the highest jurists."

Reagan kept that promise by elevating Sandra Day O'Connor as his first high court nominee in 1981.

Over three-quarters of Americans (76%) in our new ABC/Ipsos poll want President Biden to consider "all possible nominees;" just 23% want him to deliver on his promise to name a qualified black woman to the bench.

Some of the disapproval of Biden's approach appears to stem from the public and political nature of his promise, made days before the South Carolina primary in 2020.

Recordings from the Lyndon Johnson White House reveal the president had a deliberate, but private, determination to make history with the appointment of the first Black justice.

While he didn't make a public pledge, Johnson's conversations make clear he saw the nomination of Thurgood Marshall as an extension of his civil rights agenda and a means of boosting other highly qualified African American leaders.

Decades later, George H.W. Bush never publicly pledged to replace retiring Justice Marshall with another Black jurist, but he reportedly was eager to preserve that representation on the court. He nominated Clarence Thomas in 1991.

PHOTO: Judge Clarence Thomas is sworn as Associate Justice of the United States Supreme Court by Justice Bryon White on the White House South Lawn.
Judge Clarence Thomas is sworn as Associate Justice of the United States Supreme Court by Justice Bryon White on the White House South Lawn.
Mark Reinstein/Getty Images, FILE

Dwight Eisenhower expressly sought to appoint a Catholic to the seat of retiring Justice Sherman Minton in 1956. While seven of the nine justices today are Catholic, at that time the court had none. Eisenhower ultimately named William Brennan, a Catholic, to the bench. The late justice told Irish America magazine in 1990: "I have seen the record that President Eisenhower, when this vacancy arose, gave instructions to the Attorney General that he would like consideration of a Catholic."

PHOTO: President Eisenhower, left, shakes the hand of Judge William J. Brennan Jr. in his White House office on Sept. 29, 1956.
President Eisenhower, left, shakes the hand of Judge William J. Brennan Jr. in his White House office on Sept. 29, 1956.
AP, FILE

For his third Supreme Court appointment, Reagan reportedly specifically sought out an Italian American candidate, hoping to make history by tapping the first nominee from such a background.

"He felt that it would be great to put an Italian-American on the Supreme Court," former Reagan White House counsel Peter Wallison told the UVA Miller Center in 2003, according to PolitiFact. "Reagan had asked me whether [Antonin] Scalia was of Italian extraction," Walliston said. "I think he used the word 'extraction,' and I said, 'Yes, he's of Italian extraction.' Reagan said, 'That's the man I want to nominate, so I want to meet him.'"

PHOTO: President Reagan announces the retirement of Chief Justice Warren Burger at a White House news briefing.
President Reagan announces the retirement of Chief Justice Warren Burger at a White House news briefing.
Bettmann Archive/Getty Images, FILE

Of the 115 Supreme Court justices to serve since 1789, only two have been black men (Marshall and Thomas); one has been Latina (Sonia Sotomayor); and five have been women (O'Connor, Ginsburg, Sotomayor, Barrett and Elena Kagan), according to data compiled by the Federal Judicial Center.

Related Topics

ABC News Live

ABC News Live

24/7 coverage of breaking news and live events