- Conservatives have attacked Biden for sticking by his promise to name a Black woman to the Supreme Court.
- But President Reagan did virtually the same thing Biden is now doing.
- The history of Justice Sandra Day O'Connor's nomination is worth a closer examination.
Some conservatives are upset. Legal commentators and pundits are aghast that President Joe Biden would stand by his commitment to naming a Black woman to the Supreme Court.
A few also point out that Biden made his promise in the heat of the presidential campaign. Based on multiple reports, it's likely Biden's hastily made vow during a Democratic primary debate wrapped up the endorsement that helped springboard him to the White House.
There's just one problem. If Biden is being "woke," misguided, or corrupting the supposedly pure process of selecting Supreme Court nominees, then he's not alone. President Ronald Reagan went by the same playbook.
Reagan's own words, news accounts, and the private memos his aides authored at the time make abundantly clear that both the conception and later commitment to the historic vow to name the first-ever woman to the Supreme Court was about more than just high-minded idealism.
One top Reagan advisor told the president that delivering on his pledge to nominate a woman to the highest court "would be a good political move."
"It will strengthen our base among women and probably among men also," the aide wrote.
This was about politics, too. And the parallels don't end there.
Renee Knake Jefferson, who co-wrote a book about women considered for Supreme Court nominations, said Reagan also considered naming a Black woman. In fact, US Circuit Court Judge Amalya L. Kearse was on the shortlist for seats that ended up going to Justices Sandra Day O'Connor, Antonin Scalia, Clarence Thomas, and Stephen Breyer. Breyer's retirement, of course, is opening the seat for Biden.
"This is a long time coming and to the extent that anyone is suggesting that any of the Black women who would be selected wouldn't be chosen but for the fact Biden made this campaign pledge that rings very hollow to me," said Jefferson, who is also a law professor at the University of Houston and co-author of "Shortlisted: Women in the Shadows of the Supreme Court." "Black women have been eminently qualified for a lifetime."
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Reagan had some problems. As governor of California, his record of appointing women to the bench was anemic compared to President Jimmy Carter's historic pace of naming women and people of color to federal courts. It didn't help matters that Reagan opposed the Equal Rights Amendment, while first lady Rosslyn Carter and her husband took up the cause to finally push the ERA to ratification.
"Reagan had to offer something in order to earn the vote of women who would care very deeply about that stark contrast," Jefferson said.
Reagan knew he needed to do something to show women that they wouldn't be forgotten in his White House. He acknowledged to reporters that he was lagging behind with female voters, though he disputed whether that was linked to his opposition to the ERA. At a news conference defending his record on October 15, 1980, Reagan made the commitment that would later lead to a historic moment.
"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, one who meets the high standards I will demand for all court appointments," Reagan told reporters midway through a speech that began with him declaring that it was untrue that he was "somehow opposed to full and equal opportunities for women in America."
Unlike Biden, Reagan didn't really need his pledge to power his campaign. The Reagan-Bush ticket delivered one of the worst beatdowns to an incumbent president since FDR trounced Herbert Hoover out of office.
'We're not sure how we feel about affirmative action'
Like Biden, Reagan's promise wasn't forgotten. And in June 1981, Justice Potter Stewart's retirement brought the discussion to a head.
Lyn Nofziger, who worked for Reagan when he was governor and became a top White House advisor, laid out the stakes in a memo to the president and argued that the American people had "strong feelings" about the need to appoint a woman. If Reagan didn't follow through, he wrote, it could come back to bite Republicans. Plus, he signed off, "It's the right thing to do." Starting with FDR, presidents had at times included women on their Supreme Court shortlists. But until this point, being on the same list as men was just about the extent of their chances.
"I think also that if you do not appoint a woman you will be perceived as having reneged on your promise and that will hurt you in Congress in your effort to get your legislation package passed and will certainly hurt you in the polls, and all in all, will have a strong negative effect that will hurt your overall standing," Nofziger wrote in the memo, part of a collection of documents the National Archives has digitized on O'Connor's historic nomination.
But that doesn't mean the Reagan administration didn't see the danger of a conservative engaging in what Republicans today might call identity politics. After all, Reagan's Justice Department eagerly challenged affirmative action programs.
"The other key is not to go too far in raising expectations for a woman appointee — even to the point of avoiding saying we're making a special effort to seek out women (since that would be affirmative action and we're not sure how we feel about affirmative action," Reagan Justice Department official Tom DeCair wrote in a June 1981 note to the White House after Stewart had retired.
We 'may embarrass the president'
Reagan was quickly inundated with suggestions for nominees after Stewart's retirement. Lawmakers, governors, judges, and even former President Gerald Ford wrote to the White House with names of potential candidates. Ford's suggestion, Judge Cornelia Kennedy, would eventually become the only other woman Reagan would interview for the opening.
Sandra Day O'Connor, a former Arizona lawmaker and judge, soon became the frontrunner. Opposition quickly arose as soon as news of her status began to spread around Washington.
"The burden of the message was that the nomination of Judge O'Connor would trigger a nasty political protest against the President," Michael Uhlmann, special assistant to the president, wrote to Reagan aide Edwin Meese in a summary of his calls with anti-abortion groups and activists.
John C. Wilke, president of the National Right to Life Committee, warned Reagan that naming O'Connor would spark a firestorm due to her mixed record on abortion. Wilke went so far as to say his organization was ready to "go public" with a press release that "may embarrass the President."
The White House began to collect the names of senators who would oppose O'Connor. But Reagan refused to budge. O'Connor's selection was quickly announced, a decision Attorney General William French Smith told reporters was "very efficient" while trying to shoo off questions that it had been rushed to preempt any further contempt from the religious right.
Democrats, on the other hand, lined up to support O'Connor. According to White House notes, Sen. Joe Biden assured them he knew of no fellow Democrats on the powerful Judiciary Committee who would oppose O'Connor. Senators grilled her and expressed dissatisfaction with her "vague" answers about abortion during her three-day confirmation hearing, the first ever to be televised.
Opposition soon began to crumble in the face of growing public support. In the end, no senator explicitly opposed her. Only one, a staunch abortion opponent from Alabama, voted "present" during the committee vote, and the Republican lawmaker later supported her final confirmation. O'Connor was confirmed 99-0, the most votes a justice has ever received.
Reagan had kept his word. The court would now have its first female justice.