Hannity Says Biden Basing Supreme Court Pick on Gender Unconstitutional—Trump Did the Same

Fox News host Sean Hannity has questioned President Joe Biden's commitment to nominating a woman to the U.S. Supreme Court—suggesting that prioritizing a female nominee might not be constitutional.

On his Wednesday show, Hannity discussed the vacancy on the nation's highest court created by the retirement of Associate Justice Stephen Breyer—which had been announced earlier that day—and the president's previous pledge to nominate an African American woman.

Former President Donald Trump made a similar commitment in September 2020 after the death of Associate Justice Ruth Bader Ginsburg. He said he would name a woman to succeed her before he had chosen a nominee.

Hannity, an outspoken defender of the former president and frequent critic of his successor, cited criticism of Biden's commitment from legal scholar Jonathan Turley.

"Jonathan Turley, a Democrat, questions the constitutionality of this criteria," Hannity said on Wednesday.

"He wrote this: 'It is precisely what the Supreme Court declared to be unconstitutional discrimination,'" the Fox News host said, quoting from a Turley op-ed published in March 2020.

Hannity added: "We'll break Biden's potentially—break it all down as unlawful—potential unconstitutional strategy."

Turley is a professor at George Washington University Law School and was called as a witness by Republicans at Trump's impeachment hearings in 2019.

Later in the show, Hannity referred to Turley's article again to begin a discussion with attorney Alan Dershowitz and Fox News legal analyst Gregg Jarrett.

"Let's start with Jonathan Turley's premise," Hannity said. "I mean, he's very clear here on what he's saying. You know, even with identity politics, the Supreme Court nominee, this will be troubling for them when he says that they're not going to consider anybody, in the case of the vice president, gender discrimination would be allowed. Is that constitutional?"

Although Hannity is now raising constitutionality questions, former President Trump committed to nominating a woman to the Supreme Court in September 2020.

At a campaign rally in Fayetteville, North Carolina, on September 19, 2020, he described Bader Ginsburg as "a legal giant" and the crowd began chanting "Fill That Seat!"

Trump said he hadn't yet chosen a nominee but added: "It will be a woman, a very talented, very brilliant woman."

As the crowd cheered, Trump said: "I haven't chosen yet, but we have numerous women on the list."

Trump went on to nominate Amy Coney Barrett, who was confirmed by the Republican-controlled Senate on October 26, 2020—just days before the presidential election.

When Trump made that promise, Biden had already committed to nominating an African American woman if he won the election.

UPDATE 1/27/22 7:12 a.m. ET: This article was updated to include a new picture.

Composite Photo Shows Hannity and Trump.
A composite photo shows Fox News host Sean Hannity and former President Donald Trump. Hannity has questioned whether using gender as a factor in selecting a Supreme Court nominee is constitutional. Getty Images