Democrats and Republicans Stake Out Positions In Upcoming Supreme Court Confirmation Fight

Civil Rights Policy Brief #181 | By: Rodney A. Maggay | February 2, 2022

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Reagan Believed in Supreme Court Diversity, Too

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Policy Summary

In February 2016 Supreme Court Justice Antonin Scalia passed away. Senate Majority Leader Mitch McConnell later issued a statement stating that there would be no hearing or vote on a nominee submitted by President Barack Obama and that the choice should be left to the next President after the upcoming 2016 presidential election. President Obama eventually nominated Chief Judge Merrick Garland. But with the 2016 election still nine months away the Senate took no action on the nomination. After Donald J. Trump won the presidency, he subsequently nominated Neil Gorsuch to the seat that Merrick Garland had been nominated. Gorsuch was eventually confirmed by the Senate.

On September 18, 2020, Supreme Court Justice Ruth Bader Ginsburg passed away only six weeks before the 2020 presidential election. Despite the short time period and contrary to Senator McConnell’s reasoning that a Supreme Court Justice vacancy occurring during a presidential election year should be selected by the winner of that election, Senator McConnell vowed that a nominee submitted by President Trump would get a Senate vote. President Donald Trump nominated Judge Amy Coney Barrett and McConnell engineered a floor vote only eight days before the 2020 election. On October 26, 2020 Judge Barrett was confirmed 52 – 48.

On January 27, 2022 Associate Supreme Court Justice Stephen Breyer announced his intention to retire from the Supreme Court at the end of the 2021 – 2022 Supreme Court term. Biden also reiterated his campaign promise to nominate the first Black woman to the Supreme Court. LEARN MORE

Policy Analysis

While nominations to the Supreme Court are always hardly fought battles that often leave both Republicans and Democrats bruised and battered, the announcement that Justice Stephen Breyer would retire from the Court has raised old grudges and even brought a new element to disagree with in the upcoming confirmation hearings.

Democrats are still fuming over the previous three nominations made to the Supreme Court. And now, their frustrations over those prior proceedings could inform how Democrats approach the upcoming confirmation hearings. Democrats still believe that the Republicans “stole a Supreme Court seat” in 2016 by refusing to grant even a hearing or a vote to President Barack Obama’s nominee. This was completely unprecedented. And those frustrations came to the forefront again in 2020 when Senator McConnell went against his own words and reasoning to rush the confirmation of Amy Coney Barrett one week before the presidential election. This was to ensure that a Republican president would submit the nomination instead of a Democratic President. Because of the hypocrisy of Senator McConnell, Democrats will likely take an aggressive approach to securing President Biden’s nominee with the thought that a nominee should be confirmed prior to a possible switch to a Republican Senate majority after the 2022 elections. Any delay in confirming Biden’s nominee could lead to more Republican obstruction akin to what they did in delaying and eventually derailing the Merrick Garland nomination for nine months in 2016.

Goad News Justice Michelle Childs considered for Supreme Court, White House confirms

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During his 2016 campaign and in order to give his campaign a boost, President Biden made a promise to nominate a Black woman to the Supreme Court should a seat open up. While it looks like Biden seems intent on keeping that promise, his promise has infuriated many Republicans and conservatives. Many see his campaign promise as an “affirmative action” pick instead of choosing the most qualified candidate regardless of race or gender. While this issue is looking more and more as a likely rallying cry for those opposed to a possible Biden nominee these critics have overlooked an important point in staking out their position. A person of color or a woman chosen as the nominee won’t be chosen only because they are a person of color or a woman. They are almost certain to be just as qualified as any male or white candidate out there. 

For Republicans and other critics to oppose this nomination by first insinuating that a person of color or a woman is not qualified – without even knowing who the nominee is yet – shows how out of touch these critics are to what many women and persons of color have accomplished. The first impression when mentioning any candidate should be on the qualifications the candidate possesses and not that they are not qualified simply because they are a woman or person of color. 

Names have already been tossed around and among the Black women being mentioned there is a California state supreme court justice (Leondra Kruger), a woman who clerked for outgoing Justice Breyer (Ketanji Brown Jackson) and a woman considered an expert in employment and labor law (J. Michelle Childs). 

Clearly, these women are women who have worked hard and are supremely qualified for a seat on the Supreme Court. It would be disappointing to have their candidacies dismissed because of accusations that they are being considered only because they are a woman or a person of color.

President Biden has not revealed whom he will nominate to the Supreme Court yet but it looks like battle lines are being drawn and positions are being staked out to support or oppose the eventual nominee. All that is left now is to find out whom the President will choose and let the confirmation hearings play out. LEARN MORE

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact

Engagement Resources​

Click or tap on resource URL to visit links where available 


American Bar Association (ABA) – guideline on how (ABA) Standing Committee on Federal Judiciary rates federal judicial nominees.

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Demand Justice – non – profit group’s webpage on proposal on how to diversify the federal bench.

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