By Marc A. Thiessen
President Biden wants credit for nominating the first Black woman to the Supreme Court. But here is the shameful irony: As a senator, Biden warned President George W. Bush that if he nominated the first Black woman to serve on the Supreme Court, he would filibuster and kill her nomination.
The story begins in 2003, when Bush nominated Judge Janice Rogers Brown to serve on the U.S. Court of Appeals for the District of Columbia Circuit. The D.C. Circuit is considered the country’s second-most important court, and has produced more Supreme Court justices than any other federal court. Brown was immediately hailed as a potential Supreme Court nominee. She was highly qualified, having served for seven years as an associate justice of the California Supreme Court — the first Black woman to do so. She was the daughter and granddaughter of sharecroppers, and grew up in rural Alabama during the dark days of segregation, when her family refused to enter restaurants or theatres with separate entrances for Black customers. She rose from poverty and put herself through college and UCLA law school as a working single mother. She was a self-made African American legal star. But she was an outspoken conservative — so Biden set out to destroy her.
Biden and his fellow Democrats filibustered her nomination, along with several other Bush circuit-court nominees, all of whom had majority support in the Senate. Columnist Robert Novak called it “the first full-scale effort in American history to prevent a president from picking the federal judges he wants.” Democrats argued that she was out of the legal mainstream, but Republicans responded that she had written more majority opinions than any other justice on the California Supreme Court — and she was re-elected with 76 percent of the vote, the highest percentage of all the justices on the ballot.
When Democrats derailed her nomination, Bush renominated her in 2005. Brown was eventually confirmed by a vote of 56 to 43 — after Democrats released her and several other Bush nominees in exchange for Republican agreement not to eliminate the filibuster for judicial nominations. Biden voted a second time against her nomination. He never explained why, if Brown was so radical, Democrats let her through but killed 10 other Bush nominees.
The following month, when Justice Sandra Day O’Connor announced her retirement, Brown was on Bush’s shortlist to replace her. She would have been the first Black woman ever nominated to serve as an associate justice of the Supreme Court. But Biden appeared on CBS’s “Face the Nation” to warn that if Bush nominated Brown, she would face a filibuster. “I can assure you that would be a very, very, very difficult fight and she probably would be filibustered,” Biden said. Asked by moderator John Roberts “Wasn’t she just confirmed?,” Biden replied that the Supreme Court is a “totally different ballgame” because “a circuit court judge is bound by stare decisis. They don’t get to make new law.”
What Biden threatened was unprecedented. There has never been a successful filibuster of a nominee for associate justice in the history of the republic. Biden wanted to make a Black woman the first in history to have her nomination killed by filibuster. Bush eventually nominated Samuel A. Alito Jr.
Today, Biden calls the filibuster a “relic of the Jim Crow era.” But he threatened to use that relic as a tool to keep a Black woman who actually lived under Jim Crow off the highest court in the land. The irony is that now he wants to get rid of the filibuster, and claim credit for putting the first Black woman on the court.
There were many conservatives on Bush’s shortlist whose legal philosophy Biden opposed. But Biden only promised to filibuster the one Black woman. Why? Perhaps a clue lies in another confirmation fight that Biden helped wage. In 2001, Democrats blocked the nomination of Miguel Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit. According to internal strategy memos obtained by the Wall Street Journal, they targeted Estrada at the request of liberal interest groups who said Estrada was “especially dangerous” because “he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.” They did not want Republicans to put the first Hispanic on the Supreme Court. So, Biden and his fellow Democrats killed Estrada’s nomination — the first appeals court nominee in history to be successfully filibustered. It paid off when President Barack Obama nominated Sonia Sotomayor as the first Hispanic justice.
Democrats’ commitment to diversity is a ruse. Biden was willing to destroy the careers of an accomplished Latino lawyer and a respected Black female judge, and stop Republicans from putting either on the Supreme Court. For Democrats, it’s all about identity politics. Indeed, Biden might not have become president had he not made the pledge to nominate a Black woman. That promise helped secure the endorsement of Rep. James E. Clyburn (D-S.C.) — which won Biden the South Carolina primary and rescued his faltering campaign.
So, when Biden tries to bask in the glory of his historic nomination, remember Janice Rogers Brown — the Black woman who does not sit on the Supreme Court today because of Biden’s disgraceful obstruction.