The Republican senator Ted Cruz complained on Sunday that Joe Biden’s promise to nominate a Black woman to the supreme court was an instance of racial discrimination – but also claimed the GOP would not drag the eventual nominee “into the gutter” in confirmation hearings.

“Democrats today believe in racial discrimination,” Cruz told Fox News Sunday. “They’re they’re committed to it as a political proposition. I think it is wrong to stand up and say, ‘We’re going to discriminate.’”

Biden made his promise on the campaign trail in 2020. Stephen Breyer, the oldest justice on the court, announced his retirement last month.

James Clyburn, the South Carolina congressman and House whip, was instrumental in securing Biden’s promise. He has pushed for the nomination of J Michelle Childs, a judge from his state who has also attracted support from Lindsey Graham, like Cruz an influential Republican on the Senate judiciary committee.

Childs is reported to be on a short list of three.

“This administration is going to discriminate,” Cruz insisted. “What the president said is that only African American women are eligible for this slot, that 94% of Americans are ineligible.”

The Texas senator’s host, Bill Hemmer, did not point out that justices have been chosen on grounds of identity before.

The last Republican president, Donald Trump, promised to pick a woman to replace Ruth Bader Ginsburg, then did so when the liberal lion died in September 2020. Cruz championed the nominee, Amy Coney Barrett, a hardline Catholic conservative.

As a result of Trump’s three picks, conservatives outnumber liberals on the court 6-3. The replacement of Breyer, which could be Biden’s sole nomination if Republicans win back the Senate, will not alter that balance.

Cruz is an accomplished conservative provocateur. On Sunday, he chose a provocative example of a jurist who he said would not qualify for consideration by Biden: Merrick Garland.

“Merrick Garland, whom Barack Obama nominated to the supreme court, was told, ‘Sorry, you’re the wrong skin color and wrong gender, you’re not eligible to be considered.’”

Garland is now attorney general, and thus unlikely to be considered for a supreme court seat in any eventuality.

Furthermore, Cruz was among Senate Republicans who were not sorry to block even a hearing for Garland when he was nominated to replace Antonin Scalia in early 2016, claiming the conservative died too close to an election for a replacement to be considered.

Cruz was also among Republicans who were not sorry to replace Ginsburg with Coney Barrett less than two months before the 2020 election.

The Texas senator also said he would consider Biden’s nominee “on the record and I’m confident the Senate judiciary committee will have a vigorous process examining that nominee’s record. And what I can tell you right now is we’re not going to do what the Democrats did with Brett Kavanaugh.”

Kavanaugh faced accusations of sexual assault, which he vehemently denied. Democratic failed to block his confirmation.

“We’re not going to go into the gutter,” Cruz said. “We’re not going to engage in personal slime and attacks. We’re going to focus on the nominee’s record on substance and what kind of justice she would make. And that’s the constitutional responsibility of the Senate.”