Following the news that Justice Stephen Breyer is retiring from the Supreme Court, right-wing media began launching racist attacks at the yet-unnamed nominee who would replace him based solely on President Joe Biden’s campaign pledge that he would nominate a Black woman.

Biden is not the first president who committed to diversity in his judicial selection. Ronald Reagan also made a similar pledge during his presidential campaign in 1980, saying he would nominate a woman to “one of the first Supreme Court vacancies in my administration.” Biden himself has already diversified appellate courts, nominating eight Black women so far to serve in the nation’s second highest courts.

However, once the news of Breyer’s retirement broke, right-wing media were quick to attack Biden’s promise. Through outright racist language, tangential broadsides at Vice President Kamala Harris, and far-fetched comparisons between Biden’s pledge and affirmative action, right-wing figures have been dismissing the future nominee. 

Right-wing media figures use race and gender to delegitimize the upcoming nominee

• The Cato Institute’s Ilya Shapiro, in a set of since-deleted tweets, claimed that Biden’s selection process  would result in him selecting a “lesser black woman” even though there are more deserving candidates. Shapiro also claimed that because of Biden’s pledge, his nominee “will always have an asterisk attached.”  

• On Fox’s Outnumbered, guest and conservative radio host Leo Terrell claimed the “racial component” of the nomination process would mean “the race card is going to be played if you vote against this particular nominee.”

• Tom Elliot, the founder of right-wing news aggregation website Grabien, tweeted, “If only Biden could perform a vivisection, assembling a SCOTUS nominee” from Rep Maxine Waters’ (D-CA) “black skin,” Sen. Mitt Romney’s (R-UT) “Boy Scout background,” Rep. Alexandria Ocasio-Cortez’s (D-NY) “insane politics,” Vice President Kamala Harris’ “vagina,” comedian Benny Drama’s “ambiguous sexuality,” and Justice Stephen Breyer’s “disdain for the Constitution.” 

• Fox host Dan Bongino asserted on his radio show that nominating a Black woman meant she “could come out and say anything she wants — anything you say against it, you will automatically be deemed a racist.”

• Infowars’ Owen Shroyer, in discussing Biden’s pledge, said Democrats were “destroy[ing] everything with their commitment to diversity” and that Biden’s pledge to nominate a Black woman is “illegal and racist.”

Conservative commentators attack Kamala Harris to suggest nominating a Black woman is a misstep

• On Infowars, Shroyer also used Harris as a cudgel against the possibility of a Black woman being nominated, saying, “That whole notion of ‘I’m going to go with a Black woman, that’s the most important thing is for me to put a Black woman up there as a token,' because that’s all it is, it's a token -- how did that work with Vice President Kamala Harris? … I bet she’s in consideration for being that nomination. So she was such a disaster as the vice president, they’re going to move her on to the Supreme Court to get her out of their way in the White House.”   
• On Fox News’ Outnumbered, right-wing commentator Tomi Lahren complained about the possibility of Biden choosing a Black woman, saying, “We saw how well that worked out with Kamala Harris, but here's to hoping that he has a better choice in mind for this position.” 
• Later in the show, co-host Harris Faulkner speculated that Harris could be nominated, saying she “hasn't had that real dynamic moment where she’s led on an issue and it’s burst into success. … She's had multiple staff leave, leave, leave, leave, to the point where it was taking up headlines.” Faulkner suggested Biden chose Harris for her race, saying the president “already filled a job, hers, with certain categories checked off.” 
• Conservative talk show host Larry Elder tweeted Harris could be nominated, in part, because it was the only way for Democrats to “avoid a Harris-at-the-top-of-the-‘24 ticket disaster.”

• Right-wing commentator Dinesh D’Souza sarcastically tweeted, “I can totally understand the ‘let’s only consider a black woman for the Supreme Court’ thing. This was exactly the approach that yielded #KamalaHarris and that worked out beautifully, didn’t it?” 
• Breitbart’s Joel Pollak wrote in a piece that “nominating Harris could also help Biden and the Democrats solve the problem” posed by her “unpopularity.”

Right-wing disparage potential nominee by comparing Biden’s pledge to affirmative action

• Conservative writer Charlie Sykes wrote for Bulwark that Biden’s pledge “may have done his own nominee a signal disservice, by putting racial/gender identity ahead of philosophy and credentials” and told “a generation of young progressive jurists that they need not apply.”

• On his Fox show, Tucker Carlson compared the pledge to affirmative action, saying, “It is possible we've all marinated for so long in the casual racism of affirmative action that it seems normal now to reduce human beings to their race.”

• Also on January 26's Outnumbered, law professor and Fox News contributor Jonathan Turley said Biden committing to nominating a Black woman was “a rather curious pledge to make on a court that wouldn't allow that type of approach for college admission.” Faulkner responded, saying, “What you’re talking about is discrimination.” 
• On Fox News’ America’s Newsroom, Turley insinuated that nominating a Black woman would be unconstitutional, and that a such a judge would exhibit bias on the bench, saying, “It's a great irony in that you are admitting someone to the court based on an admission standard that the court itself has banned for schools, and indeed the court just took two racial preference cases to add to its docket. So those cases will be heard by a justice who was initially selected through the very type of racial preference rule. But in this case it wasn't a preference rule. President Biden said he would not consider anyone who is not female or African American. That would not be allowed for a private company or a university.” 
• Turley later wrote an op-ed for The Wall Street Journal, in which he compared the selection process to affirmative action, claimed Biden was committed to selecting a nominee “first and foremost on race and sex,” and added that the pledge would add an “unfortunate implication for the ultimate nominee.” 
• Appearing on Newsmax's National Report, Newsmax contributor and law professor Alan Dershowitz claimed “the 14th Amendment specifically prohibits any racial or gender test,” saying, “for the president to set up a quota system this way is just un-American. It's wrong.”

• On Fox News’ The Story, Fox contributor Katie Pavlich said, “The irony here is that the Supreme Court is about to hear a case about affirmative action in colleges and whether it is constitutional to allow students to be eliminated from consideration for entry into universities based on their ethnicity, their race, and their skin color. And yet here you have the president of the United States already saying he is going to make this choice based on exactly that.”
• The Daily Wire took up the same framing, with podcast host Matt Walsh saying the eventual nominee would be “an affirmative action hire, a kind of a trophy in a display case. The token Black woman.” 
• Daily Wire co-founder Ben Shapiro claimed that by Biden saying he would nominate a Black woman to the Supreme Court, he was pledging “to be a racist in advance.” He added that Biden was violating “federal civil rights’ law” because “there is no other area of American life where you could say, ‘I want a white male for X seat.’”