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Pushing Back on Right Wing SCOTUS Nomination Lies

President Biden is set to nominate the first Black woman to serve on the Supreme Court. We are incredibly excited to support the future nominee and will fight to ensure she is confirmed in a speedy fashion. Unfortunately, right-wing media figures and Republican legislators are already attempting to derail the nomination by smearing the future nominee with racist dog whistles. Moreover, they’re actively discussing ways to delay the nomination process before it’s even begun by making untrue claims about Congressional procedure. These lies are falling into three main categories:

  • The nominee is “unqualified”
  • The nominee is “too woke” and immersed in Critical Race Theory (CRT)
  • President Biden’s promise to nominate a Black woman is unconstitutional 

Conservatives have spent the last few decades doing everything in their power to rig the courts in their favor, and they’ll do anything they can to keep it that way. The attacks on the future nominee are racist and untrue — a desperate attempt to once again stop a liberal judge from taking a seat on the Supreme Court. Keep reading for talking points on how to push back against these attacks.

Confirming the nominee isn’t enough. Get involved in the court reform fight.

Confirming Justice Breyer’s replacement is a necessary first step, but we need to do more if we want to fix our courts. That’s why we founded the Unrig the Courts coalition, the only progressive courts coalition focused on expanding the courts. Read about our four-pillar plan to reform the courts that includes Supreme Court expansion, lower court expansion, term limits, and Supreme Court ethics requirements.

Lie #1: The nominee is unqualified to be a Supreme Court justice

The most common talking point you’ll probably see is the right claiming that a Black woman nominee is unqualified to serve as a Supreme Court justice. This racist line of attack hinges on the assumption that a Black woman would not qualify to be a Supreme Court Justice without “affirmative action” giving her some sort of unfair advantage for this nomination. 

This is racist and untrue for many reasons. First, we don’t know who the nominee is. By claiming that any Black woman nominated for the position is unqualified, Republicans revealed that they think every Black woman candidate is subpar. This is incredibly racist Historically, Black people, and especially Black women, have been not only prevented from holding positions of power like judgeships, but from becoming lawyers at all, mainly due to rhetoric just like this. President Biden choosing a Black woman to serve is an attempt to make the Supreme Court more representative of this country and allow qualified candidates to be considered who normally would not be. 

Second, most of the women being considered for the nomination are already federal judges who have been confirmed by the Senate. They have proven their qualifications and temperament to the Senate and are serving honorably in federal courts all across the country – and even those women who are on President Biden’s shortlist who are not already judges are eminently qualified to serve on the Supreme Court. 

Lie #2: The nominee will be “Too Woke” and immersed in Critical Race Theory (CRT)

Similar to Lie #1, Lie #2 is a pre-emptive attack on the nominee rooted in racist assumptions of Black women’s ideology. It is a clear attempt to fearmonger about her record and scare the American public over nothing. We’ve seen this play before – across the country, conservatives are creating a CRT panic, arguing in bad faith that every discussion of racism, slavery, civil rights, or any other forms of oppression is not only “CRT,” but should be banned because these discussions make white people feel guilty for being white. First things first: there’s nothing scary about critical race theory. In reality, CRT is a legal framework that shows how racism is systemic, built-in to our democratic institutions, and that discrimination or other maltreatment of people of color cannot be explained purely by individual acts of racism.

That being said, the hysteria over CRT is not a debate on the merits of it as a field of study or over its actual definition. It’s a movement by white people to protect whiteness and limit the teaching of racism and inequality. During this confirmation, Republicans will describe the nominee as a supporter of CRT, whether true or not, as a signal to their base that this nominee is a threat. Similarly, the wokeness charge will be used to paint the future nominee as a “radical” bent on destroying the Constitution. 

Republicans will not use facts when they attack the nominee. They’ve already explicitly said they’ll attack the nominee over “woke-ism” and CRT. They will rely on people’s inherent assumptions of Black women and misunderstanding of CRT in general, and proceed in bad faith from there. The best way to pushback against these claims is to call them out as the racism that they are.

Lie #3: President Biden’s promise to nominate a Black woman is unconstitutional

Some conservative commentators are claiming that by only considering Black women for the nominee, President Biden has violated the Constitution. This is plainly absurd and not backed by anything in the Constitution. It’s no surprise that these commenters are raising these bogus arguments now, and not back when Ronald Reagan similarly promised to nominate the first woman to the Supreme Court in 1980, or when Donald Trump promised to nominate a woman to replace Ruth Bader Ginsburg in September 2020. Biden is making the same kind of promise to ensure the Supreme Court consists of justices from different backgrounds and experiences, and it is in no way violative of the Constitution for him to do so.