When he made that pledge, some of us raised concerns that he was adopting a threshold racial and gender qualification for the Court. That claims were immediately challenged by liberal commentators and their authority was somewhat surprising: Ronald Reagan.
They insisted that Ronald Reagan made the same pledge to only consider a woman for his first vacancy. The claim is false and indeed the Reagan example shows why Biden’s pledge was both unprecedented and unnecessary.
In his campaign, Biden made two pledges to voters and asked his opponent to do the same to nominate only a black woman for the next open Supreme Court seat and to choose a woman as his vice president.
As previously discussed, the Supreme Court has repeatedly rejected such threshold exclusions on the basis of race or gender as raw discrimination. In 1977, the Court ruled in Regents of the University of California v. Bakke, that affirmative action in medical school admissions was unconstitutional. 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.”
Biden’s controversial use of racial and gender criteria will only grow in the coming months as the Supreme Court considers two new cases involving racial preferences in college admissions. Those cases may now be heard before a Court with one member who was expressly selected initially on the basis of not of a racial preference but a racial exclusionary rule.
Various commentators insisted that Biden did exactly what Reagan did in 1980 when he pledged to appoint a woman to the Court. The comparison, however, shows the opposite. Reagan did not exclude anyone other than women in being considered while making clear that he wanted to give one of his vacancies to a female candidate.
On Oct. 15, 1980, Reagan declared that “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. … It is time for a woman to sit among the highest jurists.”
Notably, it was Jimmy Carter who pounced on that pledge as creating a threshold gender criteria. Others noted at the time that Reagan was simply pledging that he would select a woman in “one of the first Supreme Court vacancies” rather than the first vacancy. Indeed, when a vacancy did arise, aides told the media that there was “no guarantee” that he would select a woman.
Reagan never pledged to only consider women and in fact considered non-female candidates. One of the leading contenders was considered Judge Lawrence Pierce, an African American trial court judge. Newsweek and other media sites listed an array of males being actively considered including Robert Bork, Dallin H. Oaks, Malcolm R. Wilkey, Philip B. Kurland, and Edwin Meese III.
Nevertheless, Reagan clearly wanted a female candidate and reportedly told White House Deputy Chief of Staff Michael Deaver to “find a woman who was qualified and come back and discuss it if that wasn’t possible.” That person was Sandra Day O’Connor.