In a barbed intervention on Saturday, the White House said it hoped a Republican senator who complained that Joe Biden’s supreme court pick would be the beneficiary of race-based affirmative action, would give the nominee the same consideration he gave Amy Coney Barrett.
Barrett was nominated and confirmed shortly before the 2020 election, after Donald Trump pledged to pick a woman to replace Ruth Bader Ginsburg. The hardline Catholic duly succeeded the liberal lion, establishing a 6-3 conservative majority.
Biden has pledged to put the first Black woman on the court as a replacement for Stephen Breyer, the 83-year-old liberal who this week announced his retirement.
On Friday, Roger Wicker of Mississippi complained that Biden’s pick would therefore be a beneficiary of race-based affirmative action, which the court seems poised to declare unconstitutional, having said it will consider a challenge concerning college admissions.
Wicker told a radio station in his state: “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.
“The majority of the court may be saying writ large that it’s unconstitutional. We’ll see how that irony works out.”
On Saturday, a White House spokesperson noted that after Trump promised to pick a woman, Wicker merely said he hoped Barrett would be “an inspiration” to his granddaughters.
“We hope Senator Wicker will give President Biden’s nominee the same consideration he gave to then-Judge Barrett,” the spokesperson said.
Breyer has protested that the court is not political, but though his retirement will not give Biden a chance to change the ideological balance of the panel, the president will be able to install a younger liberal before Democrats defend control of the Senate.
Many have seen rich historic irony in conservative complaints about Biden’s pledge to nominate based on race and gender.
The historian Rick Perlstein was among those to point out that Ronald Reagan, the hero of the modern Republican party, chose a justice entirely because she was a woman.
Before his victory over Jimmy Carter in 1980, Reagan announced that “one of the first supreme court vacancies in my administration will be filled by the most qualified woman I can possibly find”.
He duly nominated Sandra Day O’Connor, a political moderate and the first woman to sit on the court.
“She was totally unqualified on paper,” Perlstein said, on Twitter. “[Zero] con[stitutional] law experience. Reagan lucked out.”
Wicker also told SuperTalk Mississippi Radio he feared Biden’s pick would be more progressive than Breyer.
“We’re going to go from a nice, stately liberal to someone who’s probably more in the style of Sonia Sotomayor,” the senator said, adding: “I hope it’s at least someone who will at least not misrepresent the facts. I think they will misinterpret the law.”
Many observers made Ketanji Brown Jackson, 51, and a member of the US court of appeals for the DC circuit, favourite to be Biden’s pick. Jackson replaced Merrick Garland, now attorney general but in 2016, the nominee Republicans refused to give even a hearing when Barack Obama picked him to replace Antonin Scalia.
An era of bitter partisan warfare ensued. This time, Democrats will court Republican moderates such as Lisa Murkowski of Alaska, Susan Collins of Maine and Mitt Romney of Utah. But Wicker said Biden’s pick would in all likelihood “not get a single Republican vote”.
“But we will not treat her like the Democrats did Brett Kavanaugh,” he said, in reference to the bitter fight over Trump’s second nominee, who denied accusations of sexual assault.
Democrats need only stick together to succeed. Thanks to a Republican rule change, nominees require only a simple majority. The Senate is split 50-50 but controlled by the casting vote of the vice-president, Kamala Harris.
Wicker pointed to a wish for at least symbolic vengeance, saying the Kavanaugh fight “was one of the most disgraceful, shameful things and completely untruthful things that [Democrats on the Senate judiciary committee have] ever, ever done”.
