On May 18, 2016, Donald Trump surprised the political world by releasing the names of 11 potential Supreme Court nominees he said he’d consider -- if elected president -- to fill the seat vacated by the death of Justice Antonin Scalia in early 2015.
“All are white, and eight of the 11 are men,” the New York Times mentioned in passing. But there’s no indication that anyone was especially outraged by the all-Caucasian roster, and certainly not Republicans. Perhaps because the larger story was, after all, that Senate Majority Leader Mitch McConnell had stolen the pick from President Barack Obama.
Here’s the main context given by the Times to the release of the names, which were widely known to have come from the conservative Federalist Society and Heritage Foundation.
“The unusual move comes as Mr. Trump is looking to unify the Republican Party behind him and win over critics who remain skeptical about his candidacy. While some Republicans who oppose Mr. Trump have considered supporting Hillary Clinton or sitting out the election, he has regularly reminded them that the future of the Supreme Court is at stake.”
Trump would go to win, tragically enough, and when presented the opportunity to nominate Supreme Court justices, his box score was simple enough: Three seats vacated by three white justices and three white justices selected to fill them.
“The next person I nominate to the U.S. Supreme Court will be a white person,” is a statement Trump never made. He didn’t have to, he just did it. And no one said anything about it being race-conscious activism.
Trump had added 10 names to the nominee list in September 2016 and among those names was his eventual choice, Neil Gorsuch, a white 49-year-old judge on the U.S. Court of Appeals. The second group did include the names of three nonwhite men, but there’s no evidence that any of the three received serious consideration.
Tellingly, the lone African American on the list was 65 years old at the time. To put it mildly, that meant there were rather long odds facing that man, Robert Young, chief justice of the Michigan Supreme Court.
For perspective, had Young been selected, he would have been tied for first as the oldest nominee ever to join the bench, along with Justice Horace Harmon Lurton, who also was 65 when selected in 1909 by President William Howard Taft. None of the current Supreme Court justices was older than 55 when appointed. Trump’s choices of Gorsuch, Brett Kavanaugh and Amy Coney Barrett were 49, 53, and 48, respectively, when joining the court.
Translation: Trump never considered appointing anyone who wasn’t white to the U.S. Supreme Court. A month after the 2016 election, USA Today published a news item headlined, “Trump’s 21 potential court nominees are overwhelmingly white male and from red states.”
No Republicans complained then about the use of racial preferences by Trump. Certainly not like they are now that President Joe Biden said he would keep his campaign pledge to place the first American African woman on the Supreme Court (a pledge like the one made by President Ronald Reagan to place the first woman justice on the Court, which he did).
Apparently, the Republicans must not consider white to be a race.
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