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U.S. Sen. Ted Cruz, R-Texas, called President Joe Biden’s promise to nominate a Black woman to the U.S. Supreme Court insulting to Americans and the eventual nominee — a comment that sparked anger from those who say Cruz is missing the larger goal of Biden’s overarching pursuit to diversify federal courts.
The announcement of Supreme Court Justice Stephen Breyer’s retirement last week quickly prompted calls for Biden to fulfill his longstanding campaign promise to nominate a Black woman to the high court. Cruz, known for his fiery comments against his rivals and Democrats, has been quick to criticize Biden over his promise, which the president has since reaffirmed.
No Black woman has served on the Supreme Court before, and only five women have served on the high court.
“The fact that he’s willing to make a promise at the outset that it must be a Black woman — I gotta say, that’s offensive,” Cruz said on the Saturday edition of his podcast, “Verdict.” “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.’”
“It’s actually an insult to Black women,” Cruz continued. “If he came and said ‘I’m going to put the best jurist on the court’ and he looked at a number of people and he ended up nominating a Black woman, he could credibly say ‘OK, I’m nominating the person who’s most qualified.’ He’s not even pretending to say that.”
Cruz, whose office did not immediately respond to a request for comment on this story, said Biden's promise to pick a Black woman is affirmative action, which he called a “pernicious” practice.
Texas’ other representative in the upper chamber of Congress, U.S. Sen. John Cornyn, has not gone as far as Cruz in calling Biden’s promise offensive, but stated that he thinks the president is limiting the candidate pool and should consider other factors beyond race.
Cornyn and Cruz — both Republicans — sit on the Senate Judiciary Committee, which will play a key role in overseeing and processing the nomination process of Biden’s eventual pick.
Lena Zwarensteyn, senior director of the Fair Courts Program at the Leadership Conference on Civil and Human Rights, refuted Cruz’s statement that Biden’s promise was offensive and would exclude the best candidates. Zwarensteyn highlighted that the list of Black women being seriously considered for the role was filled with candidates who have the legal qualifications and experiences to fill the role.
“We know that they are the most qualified, they have a real depth of intelligence, they have the qualifications, they have the experience,” Zwarensteyn said. “To think that there is one ultimate best pick is wrong.”
Zwarensteyn said Biden’s promise to nominate a Black woman affirms a decadeslong push to diversify federal courts — a trend that makes judicial rulings more fair as the justices making them will have a better understanding of how the law is lived and its impact on different people. She said an unrepresentative court makeup diminishes public trust in the judiciary.
“As many know, our courts aren’t working for all of us. They seem to benefit — because they often do — the wealthy and powerful and not all of us ...” Zwarensteyn said. “For many, many, many presidential administrations, the calculus of who would be nominated for the Supreme Court unfortunately often excluded Black women and others.”
In the first year of his presidency, Biden placed more judges on federal courts than any president did in their first year since Ronald Reagan, and his choices have been notably diverse.
Two Republican presidents have made promises to nominate justices based on their gender in the past. After the death of Justice Ruth Bader Ginsburg in 2020, former President Donald Trump pledged at a rally to nominate a woman to replace her, eventually choosing Justice Amy Coney Barrett, who now sits on the high court. In 1980, Reagan, in an effort to court the support of women, also promised to pick a woman and nominated Justice Sandra Day O’Connor.
Democrats will need to uniformly support Biden’s nominee to confirm them in the evenly divided Senate, with Vice President Kamala Harris ready to cast a tiebreaking vote in the case of a 50-50 party line vote.
Cruz said he thinks there’s a chance that Biden could nominate Harris to the court — a comment that the White House has not provided any supporting evidence for — reasoning that Democrats dislike her and don’t want her to be a successor to Biden as a leader of the party.
On the Senate floor Monday, Cornyn cautioned Biden against nominating a “judicial activist” and said he valued diversity beyond race.
In comments to reporters later that day, Cornyn acknowledged Reagan’s past promise to nominate a woman and said he wants the judiciary to look like the rest of the country, but Biden reduced the potential pool of qualified judges by making his promise.
“The president promised during his campaign to nominate an African American woman to the Supreme Court — making that a historic first,” Cornyn said on the floor. “As the president weighs his decision, I want to remind him and our Senate colleagues that diversity extends far beyond just gender and skin color. We need a diversity of education, background and experience.”