Senate Republicans move to downplay race in looming Supreme Court battle

Some Senate Republicans are predicting a civil but tough Supreme Court battle in which their members largely steer clear of the nominee’s identity as a Black woman, a historic element that Democrats have played up as they tout the need for a more representative judiciary that looks like America.

But that marks a shift from recent weeks, when several Republicans drew criticism for comments made after President Biden reaffirmed his commitment to nominate a Black woman to replace retiring Justice Stephen G. Breyer on the high court.

Sen. John Kennedy (R-La.) quipped that he wanted “a nominee who knows a law book from a J. Crew catalog.”

Sen. Ted Cruz (R-Texas) called Biden’s pledge to nominate the first Black woman to the court “offensive” and “an insult to Black women,” while Sen. Josh Hawley (R-Mo.) warned against choosing a “woke activist.”

Sen. Roger Wicker (R-Miss.) said Biden’s pick would be the beneficiary of affirmative action.

“The irony is that the Supreme Court is at the very same time hearing cases about this sort of affirmative racial discrimination, while adding someone who is the beneficiary of this sort of quota,” he said in a Jan. 28 radio interview.

Since then, many Republicans have been attempting to shift the focus away from the eventual nominee’s sex and race.

Sen. Lindsey Graham (R-S.C.), a former Senate Judiciary Committee chairman, told CBS’s “Face the Nation” days after Wicker’s comments that he supports “making sure the court and other institutions look like America.”

Sen. Charles E. Grassley (R-Iowa), the top Republican on the Senate Judiciary Committee, said he was waiting for Biden to name a pick.

“It doesn’t matter to me whether it’s man or woman, Black, white, brown, Native American,” he said in an interview. “I’m just interested in how they’re going to interpret the Constitution. That’s all that bothers me.”

Focusing on the nominee’s sex or race could be a risk for Republicans. Of the 50 Republicans in the Senate, only three are nonwhite: Sen. Tim Scott (R-S.C.), who is Black, and Sens. Marco Rubio (R-Fla.) and Cruz, who are Latino. Eight are women, and only one, Sen. Marsha Blackburn (R-Tenn.), sits on the judiciary panel.

Progressive groups have pointed to the comments from Kennedy, Cruz, Hawley and Wicker as a preview of the GOP strategy to defeat Biden’s pick.

Republicans are “already tripping over themselves to say the most racist thing they can think of about [the unnamed Supreme Court nominee], her qualifications and her ideology,” said Meagan Hatcher-Mays, director of democracy policy for activist group Indivisible.

One Republican senator criticized his colleagues’ outrage over Biden narrowing his scope to only Black women, urging the party to avoid making race an issue.

“That makes sense if we did a complete survey of all the Black women in America and found that none of them were qualified. How dumb is that?” said the senator, who was granted anonymity to speak frankly about colleagues’ recent comments.

“Even if it’s somebody I’d vote against because of philosophical differences or qualifications or whatever, if it’s a Black woman that’s confirmed, we ought to celebrate it,” he said.

Biden said he plans to nominate a Black woman to the high court by the end of February, Black History Month. White House Press Secretary Jen Psaki said Tuesday that the president will interview candidates “in the next two weeks.”

Top contenders include Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the District of Columbia Circuit, California Supreme Court Justice Leondra Kruger and Judge J. Michelle Childs of the U.S. District Court for the District of South Carolina.

Graham and Scott have been supportive of Childs, their home-state judge, and three Republicans supported Jackson in a confirmation vote last year.

Such GOP support bodes well for the eventual confirmation of Biden’s pick, and some Republicans are questioning the value of engaging in a nasty public fight, particularly if it diverts attention from other issues they expect will work against Democrats in the midterm election.

“The outcome is near certain here,” said another Republican senator, who also did not want to be identified speaking on the issue. “I don’t think Republicans benefit from drawing too much attention from the topics where the administration is struggling. So I would hope that would set some of the stage for how we deal with this nomination in a way that doesn’t distract from inflation and the foreign policy failures and other things that we’re likely to have much more success talking about.”

But divisions over race and sex have continued to permeate Congress in recent days.

At a remote committee hearing on environmental justice Tuesday, Rep. Tom McClintock (R-Elk Grove) began his remarks with this: “I have to admit, I joined this hearing largely out of curiosity over how the leftist majority can turn anything, even natural resources policy, into a racial issue.”

Republicans on the Senate Banking Committee delayed a vote Tuesday on five Federal Reserve nominees over opposition to Sarah Bloom Raskin, who was nominated to serve as vice chair for supervision.

By failing to provide a quorum, Republicans also stalled the nominations of Fed Chair Jerome Powell, Lael Brainard to be vice chair, and Lisa Cook and Philip Jefferson to be Fed governors. If confirmed, Cook would be the first Black woman to serve on the Federal Reserve Board of Governors.

Another Republican senator, who also asked not to be identified, argued that it is Democrats who have been focusing on the nominee’s race and sex. Republicans, the senator said, will keep their discussions on “her qualifications, her judicial temperament, her writings, her decisions.”

“I think that very little attention will be placed [by Republicans] on the notion of identity politics, just because that’s kind of who we are as a party,” the senator said. “I think Democrats are more focused on identity politics.”

With a handful of Republicans on the Judiciary Committee who are eyeing an eventual presidential run, there’s also the possibility they seek a viral moment by being tough on the nominee or asking sharp questions that will excite the Republican base.

Sens. Cory Booker (D-N.J.), Amy Klobuchar (D-Minn.) and then-Sen. Kamala Harris (D-Calif.) all raised their profiles as members of the Judiciary Committee and ran for president in 2020, Harris becoming vice president.

“There are definitely people who try to appeal beyond the Senate chamber when they make their comments,” said John Malcolm, vice president of the conservative Heritage Foundation’s Institute for Constitutional Government. “That’s just the reality. Some senators want to run for president, and they’re going to take advantage of that opportunity to say whatever it is they want to say.”