WASHINGTON — President Biden and his legal team have spent a year preparing for this moment: the chance to make good on his pledge to name the first Black woman to the Supreme Court at a time of continuing racial reckoning for the country.
Justice Stephen G. Breyer’s decision to retire will give Biden his most prominent opportunity to reshape federal judiciary since taking office. Biden has already nominated dozens district and appeals judges from a variety of racial and legal backgrounds.
His promise also underscores how much Black women have struggled to become part of a very small pool of elite judges in the nation’s higher federal courts. Wednesday’s speculation was focused on a select group of Black women with high-credentialed educations and extensive experience on the bench.
The shortlist included Ketanji Jackson, a 51 year-old judge on U.S. Court of Appeals, District of Columbia Circuit, who graduated Harvard Law School and clerked with Justice Breyer. Leondra R. Kruger (45-year-old justice on California Supreme Court) graduated Yale Law School and clerked under former Justice John Paul Stevens.
J. Michelle Childs (55), a lesser-known Federal District Court judge from South Carolina, whom Mr. Biden recently nominated to an appeals court, is also being considered a contender. One of Mr. Biden’s top congressional allies, Representative James E. Clyburn of South Carolina, told Mr. Biden during the presidential campaign that he believed she should be appointed, in part because she came from a blue-collar background, another underrepresented group among federal judges.
Judge Jackson and Justice Kruger were both educated at Ivy League schools of law, unlike Judge Childs who went to the University of South Carolina. And while there are some differences in the women’s backgrounds and experience, they are united in being among a relative handful of Black women who have the kind of credentials normally considered qualifications for the Supreme Court.
The first Black woman to serve as a federal appeals court judge — an experience that in the modern era is usually a key credential in becoming a justice — was appointed by President Gerald R. Ford in 1975. Only seven other people had held this position by the time Mr. Biden was elected to office, more than 40 years after his appointment.
“If you just look at the raw numbers, it’s a telling and a sobering statistic,” said Leslie D. Davis, the chief executive of the National Association of Minority and Women Owned Law Firms. “That makes it clear that we must do better.”
Biden stated that he hopes that the diversity he brought to the top ranks of the federal government will be a central part of his legacy. His record on judgeships and his choice to choose Kamala Harris to be his running mate during 2020 made him the first Black woman to hold the office of vice president.
Half of Mr. Biden’s first 16 nominees for federal appeals courts have been Black women — as many as all previous presidents combined had appointed. This emphasis has attracted attention from all ideologies. Ms. Davis is interested in comparing the number of Black women previously appointed to the federal court.
“It’s a story that Black women’s voices have not been appreciated,” she said, “that their perspectives have not been valued, and their voices have not been heard.”
Conservatives such as Ed Whelan, a National Review legal commentator, have pointed out that the number and gender of Black women Mr. Biden has endorsed is strikingly insignificant compared to the pool of Black women who have law degrees.
According to an American Bar Association 2021 profile on the legal profession, only 4.7 per cent of American lawyers are Black, and 37 percent are female. Although the report didn’t specifically mention Black women, it implies that approximately 2 percent of American lawyers are Black and female.
“By Biden’s declared standard of demographic diversity, his first year of judicial nominations has clearly been a remarkable success,” Mr. Whelan wrote this month, calling Mr. Biden’s record on appointing Black women “extraordinary” while also taking “some delight in noting” that liberal white males, with just two appellate nomination slots so far, were “the big losers.”
Mr. Biden made his promise to name a Black woman to the Supreme Court at a debate in February 2020, just days before facing his Democratic rivals in the South Carolina primary, where Black people make up a large portion of the party’s voters. His campaign was in turmoil at the time due to losses in the first two presidential contests.
“I’m looking forward to making sure there’s a Black woman on the Supreme Court to make sure we in fact get everyone represented,” Mr. Biden said that night.
The promise helped Mr. Biden secure the support of Mr. Clyburn just days before the party’s contest in South Carolina.
“I have three daughters,” Mr. Clyburn told Bloomberg. “I think I would be less than a good dad if I did not say to the president-to-be, this is an issue that is simmering in the African-American community, that Black women think they have as much right to sit on the Supreme Court as any other women, and up to that point none had been considered.”
Mr. Biden won the South Carolina primaries, proving his support among Black voters. He also set in motion a series of victories on Super Tuesday.
His selection to the Supreme Court will be made in a country still reeling from the police shooting of George Floyd in 2020, and subsequent mass protests against racial injustice.
It also would come as the conservative-dominated court agreed this week to hear cases challenging race-conscious college admissions programs, raising the possibility that it may ban affirmative action policies aimed at maintaining racial diversity.
Mr. Biden’s political support has been especially strong among Black women. New York Times exit polling data from the 2020 election showed that while they made up just 8 percent of the electorate, they were Mr. Biden’s most lopsided supporters: 90 percent of Black female voters cast their ballots for him.
And in Georgia, Mr. Biden’s win was followed by Democrats sweeping a pair of crucial runoff elections for Senate seats that gave the party razor-thin control of the Senate — and with it the ability to confirm judges without needing any Republican support.
Several factors went into those narrow wins that flipped the state blue, but one was that a group of Black female organizers — most famously Stacey Abrams, the former candidate for governor who founded a voter registration group called the New Georgia Project — had been working to register hundreds of thousands new voters and encourage them to turn out.
For Democrats, maintaining enthusiastic support among Black voters, and especially Black women, may be critical in November’s midterm elections. On Wednesday, Democratic activists urged Mr. Biden to keep his promise.
“There would be little to no rationale for President Biden to miss this opportunity,” Aimee Allison, the president of She the People, a liberal advocacy group, said in a statement. “It is and could be a defining moment for his presidency.”
According to polls, Democrats are trailing in their efforts for control of the Senate and the House. Mr. Biden has had an uneven year due to the Senate filibuster rule, which allows Republicans to block many of his agendas, such as passage of a social-spending bill and an expansion in federal protections for voting rights.
But since the Senate abolished the filibuster for judges — Democrats did so for lower and appellate court judges in 2013, and Republicans did so for Supreme Court justices in 2017 — a party that controls both the White House and the Senate by any margin can appoint life-tenured federal judges, including to fill any vacancies among the 179 federal appellate seats.
When Mr. Biden announced his three first appeals court nominees in April, all three were Black women who had Ivy League educations, including Judge Jackson. Two of the next 10 appellate judge he appointed are also Black. Three of his six appellate nominees are still pending before Senate.
Mr. Biden’s decision to use his power to place numerous Black women on the bench — as well as in district court judgeships and high-profile roles in the executive branch — is transformative considering the many decades during which they have rarely exercised power in the legal system.
According to Anna Blackburne Rigsby (chief judge of the District of Columbia Court of Appeals), the history of Black female judges mirrors the larger story of African Americans dating back to the Civil War.
“Black women judges came to the ‘judicial’ table much later than Black men (by more than 80 years) and also much later than white women (by almost 60 years),” she wrote in the article, “Black Women Judges: The Historical Journey of Black Women to the Nation’s Highest Courts.”
New York City did not have its first Black female judge until 1939, when Jane Matilda Bolin was appointed to the Domestic Relations Court, Judge Blackburne-Rigsby wrote, adding that when the city’s mayor, Fiorello H. LaGuardia, appointed Ms. Bolin, he first consulted her husband — a sign of the times and of the limits placed on Black women in the court system.
Judge Blackburne–Rigsby did not comment on Wednesday. But in her article, she sounded a note of caution about viewing that demographic’s slow rise to judicial power as a matter of numbers alone.
“Being both Black and female brings an important additional voice to the deliberative process,” she wrote, “but that voice is varied because there is no singular ‘Black woman’ perspective.”
Even after the civil rights movement in the 1960s, which included President Lyndon B. Johnson’s appointment of Thurgood Marshall as the first Black Supreme Court justice in 1967, Black women’s access to the levers of judicial power remained limited.
In 1966, Mr. Johnson had also appointed the first Black female federal judge — Constance Baker Motley, whom he placed in the Southern District of New York.
And in the years that followed, Judge Motley was sometimes mentioned as a potential future Supreme Court justice, said Tomiko Brown-Nagin, a Harvard legal historian who published a biography of the judge this week, “Civil Rights Queen.”
But Ms. Brown-Nagin, who is also the dean of the Radcliffe Institute for Advanced Study, said that while Judge Motley was “eminently qualified” for elevation, her political window closed: As a former civil rights lawyer, she was seen as a liberal, and from 1969 until 1993, there was no Supreme Court vacancy while a Democrat was president.
“This appointment has been a long time coming,” Ms. Brown-Nagin said.
Source: NY Times