Donald Trump, Brett Kavanaugh
Former President Donald Trump speaks during the ceremonial swearing-in ceremony of Brett Kavanaugh as Associate Justice of the Supreme Court of the United States in the East Room of the White House in Washington, Monday, October 8, 2018. (AP Photo/Manuel Balce Ceneta)

Running for reelection in 2020, Donald Trump’s slogan was “Promises Made. Promises Kept.” 

He certainly kept one promise. On May 18, 2016—and again in September of that year—Trump promised his supporters explicitly that, if elected, he would not appoint a Black woman to the U.S. Supreme Court. 

I can already hear snuffling noises off to my right protesting that he did no such thing, that Trump actually, as he said at the time, named highly qualified federal judges “representative of the kind of constitutional principles I value.” 

Yet it is a fact that the two lists his campaign developed with the counsel of conservative activists (which he had promised not to stray from in filling the late Justice Antonin Scalia’s seat on the Court) contained not a single Black woman. Trump said nothing about excluding Black female judges. He just did it.

This is not a small point; the two Supreme Court lists are an important part of why Trump was elected president. He was not a natural candidate for white evangelical Christians to embrace—nor was he the beau ideal of the conservative legal movement. But once the lists came out, along with his promise to hew to them, religious-right leaders, white evangelical voters in the pews, and many conservatives of the Federalist stripe boarded the Trump Train, clearing the path to his nomination that June. 

That list was eight men and three women. 

That list was all white. 

During the fall campaign, when Trump was facing strong headwinds, he re-rang the Supreme Court bell by releasing, on September 23, a new list of potential nominees. The eleven names included one Black man, one Latino man, and one Indian American man. There was also one (and only one) woman, who was white. 

There was no Black woman.

Trump campaigned on his promised judicial nominations. In August, he told a rally in Ashburn, Virginia, “Even if you can’t stand Donald Trump, even if you think I’m the worst, you’re going to vote for me. You know why? Judges …”

This is the context against which we must weigh Joe Biden’s stated intention to honor a promise he first made before the South Carolina primary in 2020: “I’m looking forward to making sure there’s a Black woman on the Supreme Court, to make sure we, in fact, get every representation.” 

After the announcement of Justice Stephen Breyer’s retirement last month, Biden reaffirmed his promise that his selection “will be the first Black woman ever nominated to the United States Supreme Court.”

Cue white decompensation. To hear some conservatives tell it, there hasn’t been a worse search criterion since (the old chestnut runs) Caligula named his horse Incitatus Consul of Rome. “The fact that he’s willing to make a promise at the outset that it must be a Black woman—I gotta say, that’s offensive,” Senator Ted Cruz said. His colleague Susan Collins said, “I believe that diversity benefits the Supreme Court. But the way that the president has handled this nomination has been clumsy at best. It adds to the further perception that the Court is a political institution like Congress, when it is not supposed to be.” Senator Josh Hawley protested that Biden’s promise is “typical” of the administration, which is “race-obsessed, gender-obsessed in terms of trying to deconstruct genders.” Senator Roger Wicker went all the way there: “The irony is that the Supreme Court is at the very same time hearing cases about this sort of affirmative racial discrimination and while adding someone who is the beneficiary of this sort of quota,” he told a radio station in his home state of Mississippi. 

“The fact that he’s willing to make a promise at the outset that it must be a Black woman—I gotta say, that’s offensive.”

Sen. Ted Cruz

Right-wing commentators were even more blunt. Dan McLaughlin of National Review Online wrote that “excluding the overwhelming majority of potential job applicants is a very bad way to ensure that your job search gets the most qualified candidate, or particularly close to the most qualified.” John Daniel Davidson of The Federalist wrote, “We need to call this what it is. By announcing that he will consider only jurists of a particular race and sex, Biden is engaging in blatant racial and sex-based discrimination.” Dov Fischer of The American Spectator proclaimed that “Biden has made clear that the next U.S. Supreme Court justice needs to have two qualifications: black skin and a vagina. She does not need to have attended law school, much less to have passed a state bar exam on the first try.” (He suggested Whoopi Goldberg. Hee! Hee! Geddit?) 

The law professors Alan Dershowitz and Jonathan Turley chimed in to up the ante, claiming that Biden’s pledge was somehow actually unconstitutional. The Fourteenth Amendment (equal protection) and the Nineteenth Amendment (forbidding sex discrimination in voting) somehow mean that “you cannot use race and gender as a disqualifying factor in appointing people to the Supreme Court,” Dershowitz said. Turley argued that “the Supreme Court has declared exclusionary rules like this one to be unconstitutional or unlawful when applied to schools or businesses.”

Senator Lindsey Graham has spoken up to protest that there’s nothing wrong, and some conservative columnists, like George Will and Marc Thiessen, have conceded that pledges of this sort have been used in the past. Ronald Reagan, whose 1980 candidacy was having trouble attracting female voters, promised to put a woman on the Court. 

But nowhere have I seen anyone refer to the all-white, mostly male list Trump issued to secure his nomination, nor to the mostly white and male September list that included one Black man, one Indian American man, and one Latino man—but no Black woman. 

Does anyone think that the message of the all-white May list did not get through to its intended audience? Does anyone think that it is just a coincidence that no Black women were on the September list—even though at least one highly qualified Black conservative jurist, Judge Janice Rogers Brown, could have at least been included as a sort of bare-minimum courtesy? 

Excluding Black women from power—acting as if they literally do not exist—is simply normal behavior in many settings, not even worthy of remark. Racial exclusion is just business as usual, as long as it is done tacitly by whites. It is part of the reason why the United States, half a century after the passage of the Civil Rights Act of 1964, remains mired in racism and racial division.

Would including a Black woman on the Trump list have mattered? After all, we all know he was going to appoint whites. It might, though, have been a small interruption in the racial bile spewing from the White House and Mar-a-Lago. Symbolism matters on both sides of this divide. Trump—and now the Republican Party he has re-created in his image—knows how to use both race and sex in his appeals. In many states today, it is perfectly okay to run against “critical race theory,” against making white boys read books by Black authors, and indeed against any discussion that might make any whites uncomfortable.

I covered southern politics for years; when I worked for the Afro-American newspaper chain, I was accused of racism by white people who hadn’t ever said a word about actual segregationists. I know a race scare when I see one. 

Trump promised to exclude. He kept his word three times, resulting in the Supreme Court we have today. He won by putting the names of potential justices on the ballot—and promising not to consider anyone not on it. Susan Collins told ABC’s This Week that Biden’s pledge “helped politicize the entire nomination process.” If you want to see “politicization” of the Court, here’s an example that seems not to have outraged her: Until 2016, no presidential candidate ever put specific judges on the ballot. Trump crossed that line.

Is Biden’s pledge also blameworthy? First of all, a promise to include a group hitherto excluded is, morally and politically, nothing like a promise to continue centuries of exclusion. Beyond that, we live in 2022—after Trump’s 2016 pledge and his persistent 2020 demand that Biden release a similar list of judicial nominees before the election. Biden refused—but he frankly disclosed an important fact about his plans. If there was a norm against pre-election pledges, it was shredded by Trump himself. A norm that binds one side is not a norm at all, and Biden would be a fool to treat it as one. 

Particularly galling are the whines that white men are being discriminated against, excluded, and degraded by not being considered as Biden’s first Supreme Court nominee. The Court was established in 1789. It has had 115 justices. Four have been women, two have been Black men. None has been a Black woman. 

Trump put potential justices on the ballot. No Black woman made his cut, and none was named. Biden promised to name a Black woman to the Supreme Court. He will keep that promise, and he should.


Garrett Epps

Follow Garrett on Twitter @ProfEpps. Garrett Epps is legal affairs editor of the Washington Monthly. He has taught constitutional law at American University, the University of Baltimore, Boston College, Duke, and the University of Oregon. He is the author of American Epic: Reading the U.S. Constitution.