Why President Biden’s Commitment to a Black Woman Supreme Court Justice Was Necessary

biden-black-woman-supreme-court-breyer
The Supreme Court building on January 26, 2022, the day it was reported that Justice Stephen Breyer would soon retire. His retirement creates an opportunity for President Biden, who has promised to nominate a Black woman for his first pick to the highest court in the country. (Chip Somodevilla / Getty Images)

Supreme Court Justice Stephen Breyer’s retirement announcement is not even one week old, yet Republican senators and prominent conservatives are already attacking Biden’s unnamed nominee. Instead of celebrating the president’s historic commitment to picking the nation’s first Black woman justice, conservatives have already made up their minds that Biden’s choice of a Black woman makes her automatically unqualified.

Mississippi Sen. Roger Wicker claimed she would be a “beneficiary” of an affirmative action “quota.” Ilya Shapiro, formerly of the Cato Institute, defended his favored male choice over any “lesser [B]lack woman,” adding that the nominee “will always have an asterisk attached” to her name. Former United Nations ambassador Nikki Haley accused Biden of using a “race/gender litmus test.”

What reactionary conservatives can’t be bothered to ask is: Why hasn’t there been a Black woman Supreme Court justice in the history of the United States?

The answer has little to do with Black women’s qualifications to serve on the highest court in the land. For the first 100 years of our country’s history, women and people of color couldn’t even attend law school. The first female federal judge was only appointed in 1928. The first Black federal judge was only appointed in 1949. The first Black woman federal judge was only appointed in 1966. And by 2020, there had still only ever been eight Black women to serve on the courts of appeals—a traditional prerequisite for a seat on the Supreme Court.

That systematic exclusion of Black women lawyers from the judiciary has clearly conditioned many conservatives to believe that there are no Black women good enough to be a Supreme Court justice. The nation is about to learn just how wrong they are.

For the first 100 years of our country’s history, women and people of color couldn’t even attend law school. The first female federal judge was only appointed in 1928. The first Black federal judge was only appointed in 1949.

At Alliance for Justice, we and our allies identified scores of potential nominees for the federal judiciary and submitted hundreds of names to the president’s transition team. Those potential nominees included more than 100 Black women qualified to serve on our appellate courts.

To the administration’s credit, it is acting on that information.

Five Black women have already been confirmed to the courts of appeals, and three more are awaiting their hearings. All of them would make wonderful Supreme Court justices based solely on their talent. But we are only now hearing names like Ketanji Brown Jackson, Candace Jackson-Akiwumi, Eunice Lee and Holly Thomas because the president made an affirmative commitment to look at the broadest possible pool of amazing lawyers and judges to correct for history’s structural discrimination.

All of these women are eminently qualified to serve on the Supreme Court. But conservatives are unwilling to even consider their records. In their minds, any Black woman who is selected is already an unqualified choice. Therein lies the sad irony—the answer to why there hasn’t been a Black woman on the Supreme Court: There are many in this country still willing to openly say that there shouldn’t be.

Some are defending their misogynoir—and gaslighting us—by claiming that a Black woman would have made it on the shortlist even without the president’s commitment. Don’t fall for it.

This would not have happened without the president’s commitment. His campaign promise added the necessary momentum to build the pipelines that have been missing for much of our nation’s history. And the swift confirmations of many highly qualified Black women to circuit court seats ensured a deep bench of strong contenders for this vacancy.

Some are gaslighting us by claiming that a Black woman would have made it on the shortlist even without the president’s commitment. Don’t fall for it. This would not have happened without the president’s commitment.

We can only hope the president is undeterred from making similar commitments in the future. We look forward to promises for the first AAPI justice. The first LGBTQ+ justice. The first justice with a disability. So many people still can’t see themselves in our courts, and we will only rectify that by committing to change.

In the history of the republic, all but seven justices have been white men. In 1967, Thurgood Marshall made history as the first Black justice. In 1981, Sandra Day O’Connor made history as the first woman. And in 2009, Sonia Sotomayor made history as the first Latina justice. We are long overdue to have a Black woman on the Supreme Court. That’s about to change—but only because we have the will to change it.

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About

Rakim H. D. Brooks is the president of Alliance for Justice and Alliance for Justice Action Campaign and a public interest appellate lawyer.