White House uses GOP’s own rhetoric to rebut Supreme Court criticisms

The White House is using Republicans’ own rhetoric from past Supreme Court confirmation proceedings to rebut some of the criticisms conservatives have levied on President Biden as he prepares to nominate a successor to fill the vacancy created by Justice Stephen Breyer’s retirement.

The White House has been proactive about reaching out to Republicans and courting the support of senators who might reach across the aisle to back Biden’s eventual pick. But officials have been just as quick to cite the GOP’s own comments praising the choice of a woman to fill a seat on the high court during the confirmation process in which former President Trump chose Justice Amy Coney Barrett to replace the late Justice Ruth Bader Ginsburg.

The White House is also dismantling suggestions that Biden should be deferring to the Senate more or expanding his search, pointing out that GOP senators in the past have said a Supreme Court pick is at the discretion of the president.

The strategy marks a preview of some of the tactics Democrats might use to undercut arguments from Republicans once Biden puts forward his nominee, which is expected to happen by the end of February.

A handful of Republicans have already suggested Biden’s yet-to-be-named nominee will be opposed just by the president’s pledge to nominate a Black woman to the court. The White House has been quick to point to Trump, who said he would nominate a woman to replace Ginsburg when she died in September 2020.

Sen. Roger Wicker (R-Miss.) in a radio interview last month suggested whomever Biden chose to replace Breyer would be a “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,” Wicker said in an interview on SuperTalk Mississippi radio.

The White House in turn used Wicker’s own comments upon the nomination of Barrett to the court in 2020.

“When the previous president followed through on his own promise to place a woman on the Supreme Court, Senator Wicker said, ‘I have five granddaughters, the oldest one is 10. I think Justice Amy Coney Barrett will prove to be an inspiration to these five granddaughters and to my grown daughters,’ ” deputy White House press secretary Andrew Bates said in response to Wicker.

Barrett’s confirmation proceedings also came up when the White House looked to bat down criticism from Sen. Ted Cruz (R-Texas), who called it “offensive” that Biden was excluding other candidates from the outset by promising to nominate a Black woman.

White House press secretary Jen Psaki responded by noting that Cruz appeared to have no issue when Trump said he would choose a woman to replace Ginsburg.

Psaki went on to cite Cruz’s own comments during Barrett’s confirmation hearing, when he said “I think you’re an amazing role model for little girls. What advice would you give little girls?”

The White House has similarly used a Republican favorite — former President Reagan — to debunk arguments like the ones from Cruz and some of his colleagues. Psaki and others have highlighted Reagan’s promise to nominate a woman to the Supreme Court, which he did when he appointed former Justice Sandra Day O’Connor.

While Biden officials note the lack of Republican resistance to promises from the likes of Trump or Reagan to nominate a certain type of judge to the Supreme Court, they may similarly look to highlight comments from senators who have in the past suggested a president deserves broad deference when picking a Supreme Court justice.

Sen. Lindsey Graham (R-S.C.) in a floor speech at the time of Barrett’s nomination lamented that the Senate no longer judged a candidate solely on their credentials.

“We looked at the qualifications and said, ‘OK you’re good to go, you’re a person of integrity, you’re smart, you’re well-rounded, you’re knowledgeable in the law,” Graham said in the October 2020 speech. “You may have a different philosophy than I have but we understand elections matter’ and everybody accepted the election outcome.”

Sen. Susan Collins (R-Maine) delivered remarks in 2017 during Justice Neil Gorsuch’s confirmation proceedings in which she said the president “has wide discretion when it comes to his nominations to the Supreme Court. The Senate’s role is not to ask, ‘Is this the person whom I would have chosen to sit on the bench?’ Rather, the Senate is charged with evaluating each nominee’s qualifications for serving on the Court.”

Just after Breyer announced his retirement, however, Collins said she believed Biden had politicized the process by promising to choose a Black woman to serve on the high court during his campaign as opposed to when Trump and Reagan indicted they would do so.

“It adds to the further perception that the court is a political institution like Congress when it is not supposed to be. So I certainly am open to whomever he decides to nominate. My job as a senator is to evaluate the qualifications of that person under the advice and consent role,” Collins said.

White House officials have been in touch with Collins as Biden vets potential choices, and Graham has strongly advocated for Judge J. Michelle Childs, who sits on the federal bench in his home state of South Carolina. Graham has also been among the Republicans who have said they have no issue with Biden’s pledge to nominate a Black woman.

“Put me in the camp of making sure the court and other institutions look like America,” Graham said recently. “You know, we make a real effort as Republicans to recruit women and people of color to make the party look more like America.”

While officials acknowledge they won’t win over hard-liners like Cruz in a nomination fight, the White House has still been aggressive in engaging with Republicans to solicit input and keep them informed on the process.

Biden met with Sen. Chuck Grassley (Iowa), the top Republican on the Judiciary Committee, and he spoke on the phone with Senate Minority Leader Mitch McConnell (R-Ky.).

“He’s going to choose a nominee whose qualifications, record, character, and devotion to the Constitution and rule of law make them deserving of support on — from both sides of the aisle,” Psaki said Wednesday. “And there are many candidates at the top of their fields who fit that profile and who have received bipartisan support in the past.

“The president is certainly seeking input, seeking feedback,” she added. “But he is treating the process as he believes it should be treated, which is with seriousness, which is approaching it from a bipartisan manner and seeking engagement and advice from a range of officials, elected and non-elected.”

— Updated at 9 a.m.