Ted Cruz says Biden's promise to pick a Black Supreme Court justice is racial discrimination and could be 'illegal'

• Biden promised to nominate a Black woman to the Supreme Court.
• Sen. Ted Cruz told "Fox News Sunday" that was racial discrimination and suggested it was illegal.

Sen. Ted Cruz said President Joe Biden's promise to nominate a Black Supreme Court justice was racial discrimination and suggested that it could be illegal.

In an interview with "Fox News Sunday," Cruz said he thought it was "wrong" for Biden to "discriminate" by only considering a Black woman to replace Stephen Breyer, who announced his retirement last month.

"What the president said is that only African American women are eligible for this slot, that 94% of Americans are ineligible," Cruz told "Fox News Sunday."

"The way Biden ought to do it is to say 'I'm going to look for the best justice,' interview a lot of people, and if he happens to nominate a justice who was an African American woman, then great," he added.

"If Fox News put a posting, we're looking for a new host for Fox News Sunday and we will only hire an African American woman or a Hispanic man or a Native American woman, that would be illegal," he added.

Cruz did not immediately respond to Insider's request for comment.

Biden vowed to appoint the first Black female Supreme Court justice while on the campaign trial in 2020.

Despite his criticism, Cruz told "Fox News Sunday" that he would still consider Biden's nominee "on their record."

"I'm confident the Senate Judiciary Committee will have a vigorous process examining that nominee's record," he added.

Biden is expected to make a decision by the end of February.

The Associated Press reported earlier this month that he had narrowed down his shortlist to three candidates: Ketanji Brown Jackson, a judge for the US Court of Appeals for the District of Columbia; Leondra Kruger, a California Supreme Court justice; and J. Michelle Childs, a federal judge in South Carolina.

Jackson, who was nominated to the federal bench by former President Barack Obama, is widely seen as the top candidate.