McConnell decides to play the long game.

Mitch McConnell Doesn’t Object to Biden’s Pledge to Pick Black Woman for Supreme Court

Some Republicans had criticized decision; president plans to make selection by end of month

By Siobhan Hughes, WSJ

Feb. 22, 2022 3:54 pm ET

WASHINGTON—Senate Minority Leader Mitch McConnell (R., Ky.) said he had no objections to President Biden’s announcement that his Supreme Court nominee would be a Black woman, after other Republicans criticized the selection criteria.

Mr. Biden has vowed to pick a Supreme Court nominee by the end of the month, a deadline that falls one day before next Tuesday’s State of the Union address. When disclosing his plans for a successor to Justice Stephen Breyer, Mr. Biden said that his choice would be the first Black woman ever nominated, saying “it’s long overdue.”

“Honestly, I did not think that was inappropriate,” Mr. McConnell said at an event in Lexington, Ky., of Mr. Biden’s plan. “I’m not complaining about that, and I hope the president picks a highly qualified nominee.” He said that “she will be respectfully vetted with the kind of process I think you could be proud of.”

Mr. Biden said earlier this month he was vetting about four candidates and began the interview process in recent days, according to a person familiar with the process. The list of contenders includes Judge Ketanji Brown Jackson, a judge on the Court of Appeals for the District of Columbia Circuit; Leondra Kruger, a justice on the California Supreme Court; and Judge Julianna Michelle Childs, a federal judge from South Carolina.

Mr. McConnell, who frequently uses public speeches to establish party positions on nominees and has played a central role in past Supreme Court fights, hadn’t previously made such remarks about Mr. Biden’s criteria. After Mr. Biden announced that his choice would be someone of “extraordinary qualifications, character, experience and integrity” who was also a Black woman, some Republicans complained that Mr. Biden was unfairly excluding other worthy candidates.

Sen. Roger Wicker (R., Miss.) said that the nominee would be the beneficiary of a quota system at exactly the same time the Supreme Court is planning to weigh in on race-conscious admissions policies in higher education. Sen. Ted Cruz (R., Texas) said such a promise tells the rest of the population: “I don’t give a damn about you. You are ineligible.”

Sen. Susan Collins (R., Maine) said she would welcome the appointment of a Black woman to the high court, but that Mr. Biden had been “clumsy,” because he had initially announced the decision while he was on the campaign trail ahead of a critical Democratic primary.

Democrats have noted—as did Mr. McConnell—that past presidents have also made selections based in part on demographic characteristics. Republican Presidents Ronald Reagan and Donald Trump both announced ahead of time that they would pick women for particular vacancies. Mr. Reagan’s pick, Justice Sandra Day O’Connor, was the first woman to serve on the Supreme Court. Mr. Trump’s pick, Justice Amy Coney Barrett, was confirmed shortly before the 2020 election.

Supreme Court Justice Stephen Breyer announced his plan to retire after serving more than two decades on the court. The departure gives President Biden the opportunity to deliver on his promise to nominate the court’s first Black woman. Photo: Kevin Lamarque/Reuters

Mr. McConnell has said that he would focus on a nominee’s philosophical approach to judicial decisions. After Mr. McConnell spoke on Feb. 1 with Mr. Biden about the Supreme Court pick, a spokesman for Mr. McConnell said that the Republican leader had “emphasized the importance of a nominee who believes in judicial independence and will resist all efforts by politicians to bully the court or to change the structure of the judicial system.”

The aide also said that Mr. McConnell said that the cornerstone of a judicial nominee’s philosophy “should be a commitment to originalism”—a legal method championed by conservatives that limits rights to their apparent meaning at the time a provision was enacted—as well as textualism.

Mr. Biden has already invoked a competing approach, citing in his announcement of his hiring strategy the rarely invoked Ninth Amendment, which suggests that rights aren’t limited to those stated in the Constitution.

Such differing approaches could play into legal debates over issues such as abortion rights.