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- Janice Rogers Brown was never nominated to the Supreme Court, but she was considered a contender to replace Justice Sandra Day O’Connor. President George W. Bush chose Judge Samuel Alito to replace O’Connor.
- Biden in 2005 said Brown would probably be filibustered if Bush did tap her for a seat. Biden was also among Senate Democrats who filibustered Brown’s nomination to a federal appeals court.
News reports have described Judge Ketanji Brown Jackson’s bid to the U.S. Supreme Court as "historic" because she is the first Black woman to be nominated to serve as a justice.
But some social media posts are claiming that a Republican president was the first to take that step, not President Joe Biden, who announced on Feb. 25 that he had selected Jackson as his nominee to succeed retiring Justice Stephen Breyer.
"Remember when the Republicans nominated the 1st Black woman to the SCOTUS & she was BLOCKED and filibustered by Joe Biden?" one March 25 Facebook post said.
"FRAUD," read another post that has since been edited. "It was Republicans who nominated the 1st Black woman to the SCOTUS & she was BLOCKED & filibustered by… wait for it……Joe Biden. Media: Crickets." That post included a photo of Judge Janice Rogers Brown.
These posts were flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed. (Read more about our partnership with Facebook.)
First: Brown, a Black woman, was never nominated to the Supreme Court. She was considered a potential contender to replace the first woman on the Supreme Court, Sandra Day O’Connor, when O’Connor retired in 2006.
Biden, then a U.S. senator, said on a July 3, 2005, episode of "Face the Nation" that if Bush nominated Brown, "I can assure you that would be a very, very, very difficult fight and she probably would be filibustered."
But that moment never came to pass because then-President George W. Bush initially nominated Judge John Roberts to succeed O’Connor. Following the death of Chief Justice William Rehnquist, Bush said he wanted Roberts to be confirmed as Rehnquist’s replacement instead. Bush then nominated White House counsel Harriet Miers for O’Connor’s spot, but after Miers requested that the president withdraw her nomination amid criticism that she was unqualified to serve on the highest court, Bush nominated Judge Samuel Alito, who was confirmed in 2006.
A few years earlier, on July 25, 2003, Bush nominated Brown, then an associate justice on the California Supreme Court, to the U.S. Court of Appeals for the District of Columbia Circuit.
At the time, Republicans held a 51-48 majority in the Senate but they struggled to get the 60 votes needed to end debate and vote on judicial nominees.
Democrats were filibustering several of Bush’s nominees to prevent them from joining a federal bench, and in November 2003, Democrats signaled they would do the same to Brown, reported the Chicago Tribune, which called the judicial filibusters "unprecedented in Senate history."
Biden was among the 43 senators to vote against ending debate on Brown’s nomination, and that filibuster ultimately lasted for two years until a group of senators reached a bipartisan agreement that cleared the way for her confirmation. Biden again voted against ending debate on the nomination but the motion passed, and Brown was confirmed on June 8, 2005, with a vote of 56-43. Biden also voted against her nomination.
A Facebook post says "Republicans nominated the 1st Black woman to the SCOTUS & she was BLOCKED and filibustered by Joe Biden."
The post gives the misleading impression that Biden filibustered Brown’s Supreme Court nomination, and that’s wrong.
Brown was never nominated to the Supreme Court. She was considered enough of a candidate that Biden said she would probably be filibustered if Bush did tap her for the court. Biden was also among Senate Democrats who filibustered Brown’s nomination to a federal appeals court. But there was no Supreme Court nomination to filibuster.
The Facebook post omits significant context and the main premise is wrong. We rate it False.
Facebook post, March 25, 2022
Facebook post, March 25, 2022
Smithsonian, What to Know About Judge Ketanji Brown Jackson’s Historic Nomination to the Supreme Court, March 1, 2022
Politico, Ketanji Brown Jackson is the first Black woman selected for the nation’s top court, Feb. 25, 2022
NPR, Black women form the first line of defense for a historic Supreme Court nominee, March 18, 2022
NPR, Why Miers Withdrew as Supreme Court Nominee, Oct. 27, 2005
NPR, Alito's Supreme Court Nomination Confirmed, visited March 25, 2022
Supreme Court, Sandra Day O’Connor: First Woman on the Supreme Court, visited March 25, 2022
Ballotpedia, Janice Rogers Brown, visited March 25, 2022
NPR, Filling Two High Court Vacancies a Rare Task, Sept. 5, 2005
CBS News, Face the Nation, July 3, 2005
Chicago Tribune, Democrats threaten another judicial filibuster, Nov. 7, 2003
U.S. Senate, Supreme Court Nominations (1789-Present), visited March 26, 2022
ABC News, EXCLUSIVE: Women, Minorities Top Bush's Supreme Court Short List, June 4, 2007
U.S. Senate, Roll Call Vote 108th Congress - 1st Session, Nov. 14, 2003
U.S. Senate, Roll Call Vote 109th Congress - 1st Session, June 7, 2005
Congress.gov, PN201 — Janice R. Brown — The Judiciary, 2005-2006
Congress.gov, PN839 — Janice R. Brown — The Judiciary, 2003-2004
Berkeley Law, Janice Rogers Brown, visited March 26, 2022
The Washington Post, The GOP’s airing of grievances at Ketanji Brown Jackson’s hearing, March 22, 2022
CNN, Senators compromise on filibusters, May 24, 2005
U.S. Senate, Roll Call Vote 109th Congress - 1st Session, June 8, 2005
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