Biden to nominate Black female justice, but Democrats filibustered similar Bush pick
The panel on 'The Five' offer reaction and analysis
President Biden is pledging to nominate a Supreme Court justice based on whether that person is Black and female, despite filibustering a similar landmark nominee for the District of Columbia federal appeals court, the panel on "The Five" discussed Monday.
On "The Five," host Dana Perino – a former spokeswoman for the Justice Department and White House during the Bush administration – recalled how Democrats so fervently opposed the nomination of then-California Supreme Court Justice Janice Rogers Brown, a Black woman who grew up in heavily-segregated Alabama, to the high-profile D.C. circuit court of appeals.
"I would just like to take a quick trip down memory lane -- if Democrats really wanted to see a Black woman elevated to the Supreme Court, why did they block Janice Rogers Brown back during the Bush administration?" she asked, noting that she was working within the nominating process at the time.
United States Senate Majority Leader Bill Frist (R-TN), (left) and Senate Majority Whip Mitch McConnell (R-KY), (R), appear with two of President George W. Bush's judicial nominees, California Supreme Court Justice Janice Rogers Brown, second from left, and Texas Supreme Court Justice Priscilla Owen, REUTERS/Chip Somodevilla
"I will never forget it because anonymously, they told the [media] … it was because they didn't want the Republicans to have a shot at nominating the first Black woman to the Supreme Court."
Three current Supreme Court justices, John Roberts Jr., Brett Kavanaugh and Clarence Thomas – as well as the late Ruth Bader Ginsburg, ascended to the high court from that prominent appeals bench.
Perino further noted that one type of "diversity" that is glaringly missing from Biden's endeavor is the "diversity of thought."
In 2003, all but one Senate Democrat, Benjamin Nelson of Nebraska, voted against Bush's nomination of Rogers Brown. At the time, current top Democrats Biden, Barack Obama, and Chuck Schumer all stood opposed to the jurist.
In his speech opposing Rogers Brown, Biden gave a verbal nod to then-Sen. Robert Byrd, D-W.V. – a prolific filibusterer – and said the vote on the jurist's nomination would be "the single-most significant vote any one of us will cast in my 32 years in the Senate."
"I suspect [Byrd] would agree with that," Biden said. Obama later labeled Rogers Brown a "political activist."
In remarks to reporters late Monday, Sen. Josh Hawley, R-Mo., brought up Rogers Brown's case, saying that Biden should indeed nominate the jurist, as she fulfills his strict rubric:
"I wouldn't exclude people out of the basis on race, gender, religion or whatever else… I think he should consider all qualified nominees. I think there's a lot of great people to choose from," Hawley said, giving a nod to the fact Biden now considers the filibuster precedent a racist relic of the "Jim Crow" era.
"I think Janice Rogers Brown, he ought to nominate her and she meets his self-imposed criteria. He filibustered her twice when she was nominated for the D.C. Circuit and what was a historic nomination at the time," Hawley continued.
"So if he wants to -- I gather he no longer believes in the filibuster – if he wants to get right on that and wants to make amends for his opposition to her historic nomination, he should nominate her. And I think that would be very unifying," said Hawley
Rogers Brown had been nominated to California's high court by one of its last Republican governors, Pete Wilson.
After two years of having her nomination blocked by Senate Democrats, Bush succeeded in getting Rogers Brown seated on the appeals bench in 2005, where she served until 2017.
Fox News' Kelly Phares contributed to this report.
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