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President Joe Biden looks on. (AP) ![\\"Bill](\\" By Bill McCarthy January 28, 2022 # Joe Biden isn’t first to prioritize race, gender in picking SCOTUS nominee, as Sean Hannity claimed #### If Your Time is short * After President Joe Biden pledged to nominate a Black woman to the retiring Justice Stephen Breyer’s Supreme Court seat, Sean Hannity said on his radio show that \"there’s never been a president that has made race and gender the defining factor.\" * President Donald Trump vowed to nominate a woman to the Supreme Court before appointing Justice Amy Coney Barrett in 2020. Ronald Reagan made a similar promise as a candidate to nominate the first woman, then followed through as president. Other presidents have clearly indicated preferences for candidates of specific ethnicities or religions. See the sources for this fact-check Fox News host Sean Hannity misleadingly claimed that President Joe Biden was venturing into unprecedented territory with his pledge to nominate a Black woman as a replacement for U.S. Supreme Court Justice Stephen Breyer, who is retiring after 28 years. \"I\'m saying this fully acknowledging that there are definitely qualified people in all backgrounds, all races, all religions, etc., etc.,\" Hannity said Jan. 27 during a conversation on his radio show. \"But there\'s never been a president that has made race and gender the defining factor. That\'s the difference here.\" Biden, who promised during his campaign to nominate the first Black woman to the nation’s highest court, said he plans to settle on a nominee before the end of February. Only two Black men, the late Justice Thurgood Marshall and Justice Clarence Thomas, and only one woman of color, Justice Sonia Sotomayor, who is Hispanic, have ever served on the Supreme Court. But Hannity’s claim that Biden did what’s never been done before when he announced his intent to fill Breyer’s seat with a Black woman — a move some conservatives have cast as affirmative action — runs counter to the long history of Supreme Court nominations. A spokesperson for Hannity’s radio program did not respond to a request for comment. Less than two years ago, President Donald Trump vowed to nominate a woman to replace the late Justice Ruth Bader Ginsburg. He then appointed Justice Amy Coney Barrett to the vacancy. ![](\\" President Donald Trump watches as Supreme Court Justice Clarence Thomas administers the Constitutional Oath to Amy Coney Barrett on Oct. 26, 2020. (AP) \"I will be putting forth a nominee next week. It will be a woman,\" Trump said Sept. 19, 2020, during a rally in Fayetteville, North Carolina. He later added: \"It will be a woman, a very talented, very brilliant woman. I haven’t chosen yet, but we have numerous women on the list.\" Decades earlier, President Ronald Reagan said that if he were elected, he would nominate the first woman to the Supreme Court. \"It is time for a woman to sit among our highest jurists,\" he said at a news conference weeks before the 1980 election, according to the Washington Post. A year later, Reagan followed through, nominating Justice Sandra Day O’Connor. ![](\\" President Ronald Reagan presents his Supreme Court nominee Sandra Day O\'Connor to members of the press in the White House Rose Garden on July 15, 1981. (AP) Race, and also religion, played a role in other Supreme Court nominations, as well. #### Featured Fact-check ![](\\" ![](\\" Laura Loomer stated on July 31, 2024 in an X post “Nowhere on her birth certificate does it say that she is BLACK OR AFRICAN. … Kamala Harris is NOT black and never has been.” ![\\"true\\"](\\" false/33efdb6633e5e2fdc2d4e2f63383a1e0.jpg.\\") ![\\"false\\"](\\" false.jpg\\") By Jeff Cercone • August 6, 2024 Nikolas Bowie, assistant professor of law at Harvard Law School, said Hannity’s claim \"ignores the reality that from 1789 through 1967, every president made race and gender a defining factor in their selection process by refusing to nominate anyone other than a white man.\" Tomiko Brown-Nagin, another professor of constitutional law and history at Harvard University, said the late Justice Antonin Scalia’s Italian background was a \"defining, positive factor in Ronald Reagan’s selection of him,\" citing a report in Slate, a progressive online magazine. In a 2003 interview with the University of Virginia’s Miller Center, Peter Wallison, Reagan’s White House counsel at the time of Scalia’s appointment in 1986, said that Reagan \"wanted to be sure that he could appoint the first Italian-American … he felt that it would be great to put an Italian-American on the Supreme Court.\" \"Reagan had asked me whether Scalia was of Italian extraction,\" Wallison said, according to the Miller Center’s interview transcript. \"I think he used the word ‘extraction,’ and I said, ‘Yes, he’s of Italian extraction.’ Reagan said, ‘That’s the man I want to nominate, so I want to meet him.’\" ![](\\" President Ronald Reagan speaks at a news briefing at the White House in Washington, where he announced the nomination of Antonin Scalia to the Supreme Court on June 17, 1986. (AP) In 1955, President Dwight D. Eisenhower told his attorney general, \"I still want the name of some fine, prominent Catholic to nominate to the bench,\" according to books by historian David A. Nichols, a former professor at Southwestern College, and Sheldon Goldman, a professor of political science at the University of Massachusetts at Amherst. The late Justice William Brennan Jr., the Catholic whom Eisenhower appointed in 1956, acknowledged this during an interview with Irish America magazine. \"I have seen the record that President Eisenhower, when this vacancy arose, gave instructions to the Attorney General that he would like consideration of a Catholic,\" Brennan said. ![](\\" President Dwight D. Eisenhower shakes the hand of Justice William J. Brennan Jr. in the White House on Sept. 29, 1956, after selecting Brennan to the U.S. Supreme Court. (AP) Contemporary reporting also indicated that President George H. W. Bush concentrated the search that ended with Thomas’ swearing-in in 1991 mostly on minority and female candidates, though Bush denied that he was trying to satisfy a \"quota\" by replacing one Black justice with another. Thomas replaced Marshall, a former civil rights attorney and the court’s first Black justice, who retired due to health issues. Our ruling Hannity said that before Biden’s recent pledge to nominate a Black woman to the Supreme Court, \"there\'s never been a president that has made race and gender the defining factor.\" The claim ignored that both Trump and Reagan made similar vows to nominate women to the Supreme Court, then followed through on those promises. Other presidents in history have also considered race and religion as they have made their picks. We rate Hannity’s claim False. CORRECTION: A previous version of this fact-check mistakenly named George W. Bush as the president who appointed Justice Clarence Thomas to the Supreme Court. The president who appointed Thomas was George H. W. Bush. #### Read About Our Process The Principles of the Truth-O-Meter ### Our Sources Media Matters for America, \"Hannity: Before Biden, ‘there\'s never been a president that has made race and gender the defining factor’ in SCOTUS nominations,\" Jan. 27, 2022 Sheldon Goldman, \"Picking Federal Judges: Lower Court Selection from Roosevelt Through Reagan,\" accessed Jan. 28, 2022 David A. Nichols, \"A Matter of Justice: Eisenhower and the Beginning of the Civil Rights Revolution,\" accessed Jan. 28, 2022 The Washington Post, \"The very selective effort to cast Biden’s Supreme Court pick as an affirmative action hire,\" Jan. 27, 2022 The New York Times, \"Biden is not the first president to promise to select his nominee from a specific demographic group,\" Jan. 27, 2022 Slate, \"Did You Know Reagan Picked Scalia for the Supreme Court Because He Was Italian?\" Jan. 27, 2022 Factba.se on YouTube, \"Speech: Donald Trump Holds a Campaign Rally in Fayetteville, North Carolina - September 19, 2020,\" Sept. 19, 2020 The New Yorker, \"Ike, Ford, and a Lost Voice in Supreme Court Nominations,\" Feb. 16, 2016 University of Virginia Miller Center, \"Peter Wallison Oral History,\" Oct. 28, 2003 The Washington Post, \"Buch Picks Thomas for Supreme Court,\" July 2, 1991 The New York Times, \"The Supreme Court: Conservative Black Judge, Clarence Thomas, is Named to Marshall’s Court Seat,\" July 2, 1991 Irish America, \"LONE JUSTICE: An Interview with Justice William Brennan, Jr.,\" 1990 Email interview with Nikolas Bowie, assistant professor of law at Harvard Law School, Jan. 28, 2022 Email interview with Tomiko Brown-Nagin, professor of constitutional law at Harvard Law School and professor of history at Harvard University, Jan. 28, 2022 ## Browse the Truth-O-Meter ### More by Bill McCarthy ![](\\" ![](\\" Greg Gutfeld stated on June 23, 2022 in a TV segment: No one “with a concealed carry permit ever committed a mass shooting.\" ![\\"false\\"](\\" ![\\"false\\"](\\" By Bill McCarthy • June 28, 2022 ![](\\" Instagram_logo_2016.svg/322c808c00e73c217d17772ddd5a0eb5.jpg\\") ![](\\" Instagram_logo_2016.svg/8b142c91ebe468a84a192e6df2b7b994.jpg\\") Instagram posts stated on June 20, 2022 in an Instagram post: “Gas in Canada is $9.00 a gallon.” ![\\"false\\"](\\" ![\\"false\\"](\\" By Bill McCarthy • June 22, 2022 ![](\\" Instagram_logo_2016.svg/322c808c00e73c217d17772ddd5a0eb5.jpg\\") ![](\\" Instagram_logo_2016.svg/8b142c91ebe468a84a192e6df2b7b994.jpg\\") Instagram posts stated on June 20, 2022 in an Instagram post: A compilation of images shows what Joe Biden has “done to our country.” ![\\"false\\"](\\" ![\\"false\\"](\\" By Bill McCarthy • June 21, 2022 ![](\\" ![](\\" TikTok posts stated on July 19, 2022 in a TikTok post: An image shows Rep. Marjorie Taylor Greene in front of a cross with a figurine of former President Donald Trump on it. ![\\"false\\"](\\" ![\\"false\\"](\\" By Bill McCarthy • July 21, 2022 ![](\\" Instagram_logo_2016.svg/322c808c00e73c217d17772ddd5a0eb5.jpg\\") ![](\\" Instagram_logo_2016.svg/8b142c91ebe468a84a192e6df2b7b994.jpg\\") Instagram posts stated on July 19, 2022 in an Instagram post: Rep. Alexandria Ocasio-Cortez was “faking being arrested” during an abortion- rights protest outside the Supreme Court. ![\\"false\\"](\\" ![\\"false\\"](\\" By Bill McCarthy • July 20, 2022 ![](\\" ![](\\" Facebook posts stated on July 15, 2022 in a Facebook post: \"Antifa was already inside the Capitol with floor plans dressed as Trump supporters\" on Jan. 6, 2021, proving the attack “was 100% a setup.\" ![\\"false\\"](\\" ![\\"false\\"](\\" By Bill McCarthy • July 19, 2022 ![](\\" ![](\\" Viral image stated on July 12, 2022 in a viral image: An image shows an “all aboard the Trump train” truck crashed into a bridge. ![\\"false\\"](\\" ![\\"false\\"](\\" By Bill McCarthy • July 15, 2022 ![](\\" Instagram_logo_2016.svg/322c808c00e73c217d17772ddd5a0eb5.jpg\\") ![](\\" Instagram_logo_2016.svg/8b142c91ebe468a84a192e6df2b7b994.jpg\\") Instagram posts stated on July 12, 2022 in Instagram posts: Actor Tom Holland is “confirmed to have died.” ![\\"false\\"](\\" ![\\"false\\"](\\" By Bill McCarthy • July 14, 2022 ![](\\" ![](\\" Facebook posts stated on July 11, 2022 in Facebook posts: Images from Hunter Biden’s laptop show Joe Biden naked with a young girl. ![\\"pants-fire\\"](\\" th.jpg\\") ![\\"pants-fire\\"](\\" pants-fire.jpg\\") By Bill McCarthy • July 13, 2022 ![](\\" Instagram_logo_2016.svg/322c808c00e73c217d17772ddd5a0eb5.jpg\\") ![](\\" Instagram_logo_2016.svg/8b142c91ebe468a84a192e6df2b7b994.jpg\\") Instagram posts stated on July 10, 2022 in an Instagram post: Shinzo Abe was assassinated because he “didn’t mandate vaccines, sent 1.6 million doses back and gave citizens ivermectin.” ![\\"false\\"](\\" ![\\"false\\"](\\" By Bill McCarthy • July 11, 2022 ![](\\" black/4590875651af69b2c789ceab409664dd.jpg\\") ![](\\" black/72988380e8c8bd188dc360d11552e4a0.jpg\\") X posts stated on July 7, 2022 in in tweets: An image shows that “following his resignation, Boris Johnson has escaped to the sea.” ![\\"false\\"](\\" ![\\"false\\"](\\" By Bill McCarthy • July 8, 2022 ![](\\" ![](\\" Facebook posts stated on June 30, 2022 in Facebook posts: President Donald Trump was in a presidential limousine as he left his Jan. 6, 2021, rally at the White House Ellipse. ![\\"false\\"](\\" ![\\"false\\"](\\" By Bill McCarthy • July 8, 2022 ![](\\" ![](\\" Facebook posts stated on July 2, 2022 in a Facebook post: \"Fox offers Chris Wallace\'s Sunday spot to Candace Owens.\" ![\\"false\\"](\\" ![\\"false\\"](\\" By Bill McCarthy • July 7, 2022 ![](\\" ![](\\" Marjorie Taylor Greene stated on July 5, 2022 in a tweet: Says an image shows the Highland Park shooting suspect \"in jail or rehab or a psychiatric center\" before the shooting. ![\\"false\\"](\\" ![\\"false\\"](\\" By Bill McCarthy • July 5, 2022 ![](\\" ![](\\" Facebook posts stated on June 28, 2022 in a Facebook post: An image shows a “UFO photographed on June 21, 2014 by the pilot from the cockpit of an F-16 military plane flying near Lackland Air Force Base of the United States located in San Antonio, Texas.” ![\\"false\\"](\\" ![\\"false\\"](\\" By Bill McCarthy • June 30, 2022 ![](\\" ![](\\" Greg Gutfeld stated on June 23, 2022 in a TV segment: No one “with a concealed carry permit ever committed a mass shooting.\" ![\\"false\\"](\\" ![\\"false\\"](\\" By Bill McCarthy • June 28, 2022 ![](\\" Instagram_logo_2016.svg/322c808c00e73c217d17772ddd5a0eb5.jpg\\") ![](\\" Instagram_logo_2016.svg/8b142c91ebe468a84a192e6df2b7b994.jpg\\") Instagram posts stated on June 20, 2022 in an Instagram post: “Gas in Canada is $9.00 a gallon.” ![\\"false\\"](\\" ![\\"false\\"](\\" By Bill McCarthy • June 22, 2022 ![](\\" Instagram_logo_2016.svg/322c808c00e73c217d17772ddd5a0eb5.jpg\\") ![](\\" Instagram_logo_2016.svg/8b142c91ebe468a84a192e6df2b7b994.jpg\\") Instagram posts stated on June 20, 2022 in an Instagram post: A compilation of images shows what Joe Biden has “done to our country.” ![\\"false\\"](\\" ![\\"false\\"](\\" By Bill McCarthy • June 21, 2022 ![](\\" ![](\\" TikTok posts stated on July 19, 2022 in a TikTok post: An image shows Rep. Marjorie Taylor Greene in front of a cross with a figurine of former President Donald Trump on it. ![\\"false\\"](\\" ![\\"false\\"](\\" By Bill McCarthy • July 21, 2022 ![](\\" Instagram_logo_2016.svg/322c808c00e73c217d17772ddd5a0eb5.jpg\\") ![](\\" Instagram_logo_2016.svg/8b142c91ebe468a84a192e6df2b7b994.jpg\\") Instagram posts stated on July 19, 2022 in an Instagram post: Rep. Alexandria Ocasio-Cortez was “faking being arrested” during an abortion- rights protest outside the Supreme Court. ![\\"false\\"](\\" ![\\"false\\"](\\" By Bill McCarthy • July 20, 2022 ![](\\" ![](\\" Facebook posts stated on July 15, 2022 in a Facebook post: \"Antifa was already inside the Capitol with floor plans dressed as Trump supporters\" on Jan. 6, 2021, proving the attack “was 100% a setup.\" ![\\"false\\"](\\" ![\\"false\\"](\\" By Bill McCarthy • July 19, 2022 ### Joe Biden isn’t first to prioritize race, gender in picking SCOTUS nominee, as Sean Hannity claimed * ![](\\" ![](\\" Jesse James stated on May 13, 2024 in News conference: In Wisconsin, “a legislative committee cannot release funding.” ![\\"barely-true\\"](\\" th.jpg\\") ![\\"barely-true\\"](\\" barely-true.jpg\\") By Laura Schulte • August 27, 2024 * ![](\\" ![](\\" Facebook posts stated on August 14, 2024 in a Facebook post: “Nike announces termination of contract with Brittney Griner after ‘strong backlash’ from online community.” ![\\"false\\"](\\" ![\\"false\\"](\\" By Ciara O\'Rourke • August 27, 2024 * ![](\\" ![](\\" Threads posts stated on August 23, 2024 in a Threads post: Lowe’s CEO Marvin Ellison said on CNBC, “If conservatives do not like our values, they should take their money to Home Depot.” ![\\"pants-fire\\"](\\" th.jpg\\") ![\\"pants-fire\\"](\\" pants-fire.jpg\\") By Loreben Tuquero • August 26, 2024 * ![](\\" ![](\\" Facebook posts stated on August 20, 2024 in a Facebook post: “All students who knelt during the national anthem were rounded up and removed from scholarships” at the University of Texas. ![\\"false\\"](\\" ![\\"false\\"](\\" By Ciara O\'Rourke • August 26, 2024 * ![](\\" ![](\\" Instagram posts stated on August 19, 2024 in a post: Kamala Harris has adopted the Nazi-rooted phrase “Strength Through Joy” as her campaign slogan. ![\\"false\\"](\\" ![\\"false\\"](\\" By Sara Swann • August 26, 2024 * ![](\\" ![](\\" Facebook posts stated on August 22, 2024 in Facebook posts: Jason Aldean rejected a $500 million music collaboration with Taylor Swift. ![\\"false\\"](\\" ![\\"false\\"](\\" By Sofia Ahmed • August 26, 2024 * ![](\\" ![](\\" Facebook posts stated on August 21, 2024 in una publicación en Facebook: “Elon Musk pide la prohibición de ‘The View’, ‘prefiero caminar descalzo sobre asfalto caliente que ver The View’”. ![\\"false\\"](\\" ![\\"false\\"](\\" By Marta Campabadal Graus • August 26, 2024 * ![](\\" ![](\\" Facebook posts stated on August 21, 2024 in una publicación en Facebook: “Mark Wahlberg y Mel Gibson invierten 500 millones de dólares para el primer estudio de producción de la industria centrado en los valores tradicionales”. ![\\"false\\"](\\" ![\\"false\\"](\\" By Maria Briceño • August 26, 2024 * ![](\\" ![](\\" Bryan Steil stated on April 28, 2024 in TV interview: Says U.S. Sen. Tammy Baldwin \"believes taxpayer dollars should be used for abortion.\" ![\\"half-true\\"](\\" th.jpg\\") ![\\"half-true\\"](\\" true.jpg\\") By Ricardo Torres • August 26, 2024 * ![](\\" ![](\\" Instagram posts stated on August 22, 2024 in an Instagram post: Maxine Waters told her followers on X not to follow Omar Navarro because he is a “Hispanic Republican.” ![\\"pants-fire\\"](\\" th.jpg\\") ![\\"pants-fire\\"](\\" pants-fire.jpg\\") By Sofia Ahmed • August 23, 2024 Load more ### Support independent fact-checking. Become a member! In a world of wild talk and fake news, help us stand up for the facts. 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There's never been a president before Joe Biden that has made race and gender the defining factor for a Supreme Court nomination