By Julia Peck and Lisa Graves
When President Biden renewed his pledge to nominate a well-qualified Black woman to the Supreme Court after Justice Stephen Breyer announced his retirement, right-wing politicians and the groups that support their agenda had a meltdown.
No Black woman has ever been appointed to the Court, despite the many experienced Black women judges on the state and federal bench. In one county in Texas alone, voters elected 19 Black women to serve as judges in 2018.
Prominent right-wing women’s groups have claimed that Biden’s announcement “undercuts” women by supposedly not allowing them to compete with men. Some of these groups have equated Biden’s promise with discrimination.
But just over a year ago, Donald Trump made a similar commitment. In September 2020, he announced he would nominate a woman to the Supreme Court, only two days after Justice Ruth Bader Ginsburg died.
“I will be putting forth a nominee next week. It will be a woman,” he declared at a rally in North Carolina. Five candidates were on his shortlist and all were women, according to the Trump White House. He later nominated Amy Coney Barrett, a white woman with a controversial history, who was quickly confirmed by Trump’s GOP-controlled Senate.
The reactions from right-wing women’s groups were strikingly different then. Many of the same women’s groups slamming Biden celebrated Trump after his announcement.
True North Research analyzed their social media and publication records and found that none of the main right-wing women’s groups complained that Trump was limiting his list of potential justices based on the gender of the nominee. None.
Here are some examples of the stark differences in reactions to Biden’s and Trump’s promises to choose a woman from three of these right-wing women’s groups.
Independent Women’s Forum/Independent Women’s Voice
In the wake of Biden’s announcement, the Independent Women’s Forum (IWF), a pay-to-play group that has long ties to GOP politicians and to billionaire Charles Koch, immediately went on the attack.
IWF fellow Kaylee McGhee White penned an op-ed in a right-wing outlet calling Biden’s pledge to nominate a Black woman “discriminatory” and “toxic.” “Cultural leftists have decided that discrimination is good, as long as it’s done in the name of ‘equity,’” McGhee White wrote.
McGhee White acknowledged that Ronald Reagan had publicly committed to naming a woman to the Supreme Court in 1980, but she claimed that Reagan simply promised to take gender into consideration, not to exclude men from the nominee pool.
That is false: Reagan stated in unequivocal terms at an October 1980 news conferencethat he would only nominate a woman. “It is time for a woman to sit among our highest jurists,” Reagan said. “I intend to live up to that commitment [by] appointing a woman to the Supreme Court.”
Similarly, an IWF fellow named Emily Jashinsky appeared on a right-wing talk show and called Biden’s promise to nominate a Black woman “neo-racism.”
Likewise, Lisa Boothe–who is part of IWF’s affiliated 501(c)(4) called the “Independent Women’s Voice”–argued on FOX that Biden was engaging in “pandering at its worst.”
These attacks illuminate another difference between these parallel moments, beyond the political party of the president in question: Biden’s promised nominee is not just a woman, but a Black woman.
Boothe, who is white, keyed into this in her appearance on FOX, using the occasion to disparage another Black woman, Vice President Kamala Harris. “This is how we got Kamala Harris,” Boothe said. “She had certainly accomplished things, but she’s not fit for the vice president role. [Biden] didn’t find the best candidate for the job…” Notably, Boothe has appeared with former GOP vice presidential candidate Sarah Palin on FOX and has never made similar claims on FOX about Palin, who had spent fewer years in public service than Harris and does not have a law degree, unlike Harris.
In contrast, Boothe refused to call Trump’s tweet “wrong” when he said Reps. Alexandria Ocasio-Cortez, Rashida Tlaib, Ilhan Omar, and Ayanna Pressley should “go back where you came from.” She has, however, called vaccine mandates “clear racism.”
Notably, Boothe was not alone in attacking Biden’s choice of Harris to be VP. IWF’s attacks on Harris when Biden chose her to be his running mate included claiming she was selected because she “checked two key diversity boxes” of being “female and Black.” The tenor of such attacks is likely a preview of what will come next.
In September 2020, IWF made no such complaints after President Trump pledged to nominate a woman to the Supreme Court. An analysis of its Twitter feed, posts, and articles turned up no criticisms of Trump’s decision to limit the nominee pool for the Ginsburg vacancy by gender.
Instead, Erin Hawley, a fellow with IWF’s “Independent Women’s Law Center,” praised President Trump in an article on IWF’s site that asserted that the left planned to oppose his nominee “no matter her qualifications.” In that piece, she expressed no concern that Trump had announced he was limiting his candidates for the Supreme Court to women and lauded him for his “transparency” about his potential nominees.
His list of potential nominees was not, however, only limited by gender: it was culled from a list hand-picked by unelected political operatives.
During his 2016 presidential campaign, Trump promised to nominate a Supreme Court justice based on a list of lawyers tied to the Federalist Society, a group that receives money from billionaires like Koch as well as corporations and numerous secret sources. Trump supplemented that list in 2018 with additional Federalist Society-tied judges whom he had put in lower federal courts in his first years in office.
Initial reports suggested that the list from which Trump chose was created for him by the Koch-funded Heritage Foundation. It was later revealed that the primary influencer of the list was Leonard Leo, who was an executive of the Federalist Society and now helps lead its board. Leo was said to be “volunteering” to help Trump choose judges.
A book co-authored by his friend Carrie Severino, who has led the Judicial Crisis Network (JCN) from an office down the hall from Leo’s Federalist Society offices, expressly detailed how Leo and Don McGahn worked together to put Amy Coney Barrett on Trump’s list of potential Supreme Court nominees in 2018. A spokesperson who had worked closely with Leo told the Daily Beast that in his view: “JCN is absolutely Leonard’s group. Carrie was working out of the Federalist Society office. Federalist Society staff babysat her kids as the JCN project was launched… The JCN is Leonard Leo’s PR organization—nothing more and nothing less.” Leo is not listed as a board member or employee of JCN, which has received funds from Leo’s BH Fund.
As Robert O’Harrow and Shawn Boberg documented in the Washington Post, Leo is the linchpin of a massive dark money network focused on swinging U.S. courts to the right, stacking the judiciary with people to reverse landmark 20th century legal precedents.
Due in part to the maneuvers of Sen. Mitch McConnell (R-KY), Trump ended up with not one, but three Supreme Court seats to fill. Less than a month before the 2020 election, Coney Barrett joined Neil Gorsuch and Brett Kavanaugh on the Court. All of them were on Leo’s handpicked list, and they constitute one-third of the Court. These new Trump additions allow a far-right wing faction to now dominate the highest court in the country.
IWF, however, did not complain that Coney Barrett was selected due to her gender or because of her ties to the Federalist Society or when she was on the all-woman shortlist Trump chose from, which were culled from Leo’s list of Supreme Court candidates.
Instead, IWF’s response was unequivocally enthusiastic, praising Barrett’s nomination and criticizing women who opposed Barrett’s confirmation for purportedly dishonoring her and Justice Ruth Bader Ginsburg’s legacy as a woman appointed to the Court.
IWF also published a flurry of articles supporting Trump’s choice and his effort to fill a Supreme Court vacancy right before the election, even though it had supported blocking President Obama’s nominee for many months in 2016 when McConnell claimed it was inappropriate for Obama to fill a vacancy in an election year. That obstruction resulted in Trump’s nomination of Gorsuch, who was confirmed in 2017 to a vacancy that lasted more than a year. IWF worked to help get Gorsuch confirmed.
Meanwhile, just weeks before the 2020 election, IWF characterized progressive women leaders who opposed confirming Coney Barrett as hypocrites, and at times framed their concerns about her nomination as anti-Catholic bias. Their push for Coney Barrett’s confirmation culminated in an “I’m With Her” rally at the Supreme Court in direct counterprotest to the concurrent Women’s March against her confirmation.
This is not surprising because IWF grew out of a group of prominent right-wing women who supported the confirmation of Clarence Thomas. The group began in 1991 as “Women for Judge Thomas.” One of its main activities was publicly criticizing Anita Hill, the Black woman who testified under oath that her boss, Thomas, had sexually harassed her was he led the Equal Employment Opportunity Commission; he denied it.
In recent years, IWF and IWV have also received significant funding from groups in Leo’s network.
Network of Enlightened Women
Also vocal against Biden’s pledge is Network of Enlightened Women (NeW), a right-wing women’s group focused on college campuses. It has received funding from the Koch fortune and from the 85 Fund, one of the powerful dark money groups tied to Leo.
NeW founder and president Karin Lips, who is also a fellow at IWF, published an op-ed claiming Biden was “undercutting women” by purportedly not allowing them to compete with men in the selection process. “Women achieve equality when they succeed based on merit, not because a man decides a woman should have the job,” Lips wrote.
However, in September 2020, NeW published no tweets, articles, or posts criticizing Trump when he — as a man — chose the nominee to replace Justice Ginsburg from a list the White House announced was limited to women. Then, once Coney Barrett was announced as the nominee, Lips jumped in to support her in an op-ed in USA Today lauding Coney Barrett as a model conservative woman and denigrating “modern feminists” for oppositing her confirmation.
Concerned Women for America
Concerned Women for America (CWA) describes itself as the “nation’s largest public policy women’s organization.” It has received millions from the Koch billionaire network, and it has worked extensively against abortion access and LGBTQ+ rights.
Shortly after Biden’s announcement, CWA general counsel Mario Diaz penned a seemingly transphobic, fear-mongering op-ed in the Heritage Foundation’s Daily Signal entitled “First Black Woman Supreme Court Justice Could Be… a Man?”
Diaz seized on the pronoun “they” that President Biden used in his tweet announcing his promise to nominate a Black woman, speculating that Biden could nominate a Black trans woman. (Never mind that “they” is more commonly used by nonbinary people, or that the use of “they” as a singular pronoun to refer to a person of any gender dates back to 1375.)
Instead of praising Biden’s promise to appoint a well-qualified woman to the Court, Diaz used the announcement to slam the Biden administration for protecting the rights of the transgender community and appointing trans women, such as Admiral Dr. Rachel Levine, to leadership roles for their exemplary records and expertise.
This anti-trans fear-mongering comes in the wake of an epidemic of fatal violence against Black trans women, which reached a record high in the U.S. in 2021.
In a far cry from such attacks on Biden’s pledge to nominate a Black woman, CWA publicly celebrated President Trump’s pledge to nominate a woman in 2020.
Penny Nance, CWA’s longtime CEO and president, published an op-ed for FOX titled, “It’s time to put first conservative woman on Supreme Court.”
Once Coney Barrett was picked by Trump from the list of five women to become his nominee, CWA launched into action to back her, organizing the “Women for Amy” campaign that included a national bus tour. CWA released fifteen more statements and op-eds touting their official support for Coney Barrett, declaring a national week of prayer, and calling for her “swift confirmation” as the presidential election drew closer.
Biden is not the first president to take race and gender into consideration when nominating a Supreme Court case, despite Sean Hannity falsely claiming so on FOX. The historical record shows that Reagan nominated Sandra Day O’Connor and Trump nominated Coney Barrett from lists of exclusively women who could become nominees.
But IWF, NeW, and CWA all seem to have conveniently forgotten this history. Today they oppose gender- or race-conscious appointments, but in 2020 they put any criticism of Trump pledging to choose a woman aside and lauded him for his choice. They then supported the multi-million dollar dark-money campaign for her confirmation.
What matters most about Biden’s pick is that they be fair. That is a crucial quality for a judge.
It is also a quality that has been drawn into question for the Trump nominees who were subject to his anti-Roe litmus test and Leo’s agenda. It came to the fore as well in Justice Coney Barrett’s refusal to recuse herself from a case involving the corporation her father worked for, despite her long ties to the fossil fuel industry.
Similarly, Jane Mayer’s recent bombshell investigation in the New Yorker sheds doubt, again, on the impartiality of Justice Thomas, who has been ruling cases brought by litigants who are close allies of his wife, the right-wing political operative Ginni Thomas. There is even more recent news that, according to Ginni Thomas herself, Justice Thomas has been in close touch with controversial Florida Governor Ron DeSantis.
Whoever President Biden’s nominee may be, may she be celebrated as the first Black woman justice in U.S. history and as a fair-minded, compassionate, and wise judge.
Alyssa Bowen and Evan Vorpahl contributed to this analysis.