Since it was established in 1789, the US Supreme Court has had 115 justices. All but six have been white men. No Black woman has ever been nominated, let alone served, on the nation’s highest court.
For a lot of Republicans, 232 years is still too soon to rectify that.
Backlash to President Biden’s announcement that his first Supreme Court nominee will be a Black woman has been as predictable as it’s been swift. GOP detractors aren’t upset by any particular candidate. What has them in a twist is that Biden’s choice will be a historic first — which two years ago is exactly what he said he would do, if elected.
After Justice Stephen Breyer announced his retirement, Biden said, “The person I will nominate will be someone with extraordinary qualifications, character, experience, and integrity. And that person will be the first Black woman ever nominated to the United States Supreme Court. It’s long overdue in my view. I made that commitment during the campaign for president, and I will keep that commitment.”
Generally speaking, people usually like it when a president keeps his campaign promises. Clearly that no longer applies when that promise involves breaking down a barrier for Black women who deserve to finally see themselves represented on the nation’s highest court.
“You know, Black women are what, 6 percent of the US population? He’s saying to 94 percent of Americans, ‘I don’t give a damn about you, you are ineligible,’ ” said Senator Ted Cruz of Texas, who called Biden’s decision “insulting” and “offensive.”
Cruz certainly didn’t find it insulting and offensive in 2020 when President Trump announced one day after the death of Justice Ruth Bader Ginsburg that he would nominate a woman to replace her. Trump specifically mentioned the woefully underqualified Amy Coney Barrett, which is what Senator Mitch McConnell, then Senate majority leader, instructed him to do.
Senator Roger Wicker of Mississippi never branded Barrett as the “beneficiary” of affirmative action. Senator Susan Collins of Maine called Biden’s announcement “clumsy, at best.” She had no such misgivings in 2018 when she vigorously defended her vote for Brett Kavanaugh, who was credibly accused of sexual misconduct.
And there was no poll specifically asking Americans whether Biden should “consider all possible nominees” or “consider only nominees who are Black women, as he has pledged to do.” Sure racialized propaganda is engineered to evoke rancor about Biden’s pick. Mind you, none of this is about one particular woman or her qualifications. This is a broad stroke against all contenders simply because they are Black women. It’s misogynoir, that distinct hatred of Black women that has been an American pastime since long before Moya Bailey, a Northwestern University professor, coined that term.
Biden is doing nothing that hasn’t been done by his predecessors. As a Republican candidate, Ronald Reagan said that “one of the first Supreme Court vacancies in my administration will be filled by the most qualified woman I can possibly find, one who meets the high standards I will demand for all court appointments.” Less than a year later as president, he nominated Sandra Day O’Connor, the high court’s first woman.
In his first year, 42 of Biden’s federal judiciary nominees have been confirmed; 33 are women, and 29 identify as Black, Hispanic, Indigenous, Asian, or multiracial. Ketanji Brown Jackson, a judge on the US Court of Appeals for the District of Columbia and now a potential Supreme Court nominee, is one of them. Other contenders include Leondra Kruger, a California Supreme Court justice; J. Michelle Childs, a South Carolina US District judge; and Sherrilyn Ifill, the NAACP Legal Defense and Educational Fund’s president and director-counsel.
It’s an embarrassment of riches. Meanwhile, Republicans are just embarrassing and telling on themselves. Again.
American racial progress is as slow as cold molasses in winter. Still, some find any movement at all objectionable. There remain too many corridors in this nation where doors are still closed to Black women. Biden wants this not only because representation is the oxygen of aspirations — sometimes, you need to see it to be it — but because it is a necessary change for the country, especially in this fraught moment.
Given the court’s conservative stranglehold, the president’s pick will not alter its ideological tilt. But she could bring a depth of lived experiences that can illuminate the law and how it has been applied, much as Justice Sonia Sotomayor, the court’s first (and only) Latina, has often done.
Years ago, O’Connor said of her late colleague Thurgood Marshall, the high court’s first Black justice, that in listening to him speak about segregation’s harsh impact on Black children, “my awareness of race-based disparities deepened.” Marshall “imparted not only his legal acumen but also his life experiences, constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.”
That is the power of inclusivity in a nation where its actions still mostly affirm white men. We are starved for moral truth and clarity. Ignore the noise and lift up this moment. At last, a Black woman will be a Supreme Court justice. It’s long overdue, but it’s right on time.