In this Episode:
In this episode, we kick off our Road to Confirmation series. “On the Issues” will be following the nomination and confirmation process of President Biden’s nominee to replace Justice Stephen Breyer on the U.S. Supreme Court. The Road to Confirmation series will take you through each step of the confirmation process as it happens in real time, with commentary and analysis from experts.
We launch the series with this robust discussion about what Justice Breyer’s retirement means for the Supreme Court. And, we dig deep on President Biden’s promise to nominate a Black woman on the Supreme Court. Who are the most likely candidates? What credentials and experience would they bring to the role? What distinguishes the speculated short-list candidates from each other? If confirmed would a Biden nominee have power to influence the Supreme Court?
Have a topic you’d like us to delve into, a guest recommendation, or just want to say hi? Drop us a line at firstname.lastname@example.org.
- “Opinion: Why Adding a Black Woman to the Supreme Court Would Be Good for the GOP,” Zinelle October, Politico, Feb. 3, 2022.
- “Americans Are Entitled to Government That Truly Reflects Them. Let’s Start With the Supreme Court,” Elizabeth Hira, Ms. magazine, Feb 3, 2022.
- “Why President Biden’s Commitment to a Black Woman Supreme Court Justice Was Necessary,” Rakim H. D. Brooks, Ms. magazine, Feb. 1, 2022.
00:00:00 Michele Goodwin:
Welcome to “On The Issues with Michele Goodwin” at Ms. Magazine. This is a show where we report, rebel, and you know we tell it just like it is. On this show we center your concerns about rebuilding our nation and advancing the promise of equality. So, thank you for joining me as we tackle the most compelling issues of our times.
On today’s show we’re kicking off our Road To Confirmation series. We’ll be following the nomination and confirmation process of President Biden’s nominee to replace Justice Stephen Breyer on the United States Supreme Court. Justice Breyer announced at the end of January that he will be stepping down from the court so, On The Issues will take you through each step of the confirmation process as it happens in real time with commentary and analysis from experts.
We are moving beyond the toxic masculinity and their clutching of the pearls to speak squarely and substantively about the nomination process, the experience and qualifications of potential nominees, and also what they might bring to the United States Supreme Court.
So, we’ll move beyond the vitriol, hand wringing, barbs, and the like. In light of the possibility of a Black woman serving on the United States Supreme Court, those barbs are real but also purposeful distractions. There will be a vacancy and there will be a nominee so, let the process begin.
Joining me for this episode and to kick us off is Zinelle October. She is the Executive Vice President of the American Constitution Society.
I’m also joined by Franita Tolson. She is the Vice Dean for Faculty and Academic Affairs, and Professor of Law at the University of Southern California Gould School of Law. She’s a nationally recognized expert on election law and has testified before the United States Congress on voting rights issues.
I’m also joined by Stephen Vladeck. He is a nationally-recognized expert on Federal courts and constitutional law. He has argued cases before the United States Supreme Court, the Texas Supreme Court, and lower Federal courts. He’s also the co-host of the award-winning National Security Law podcast.
And I am also joined by Dean Danielle Holley-Walker. She is the Dean and a Professor of Law at Howard Law School and a former clerk for Chief Judge Carl E. Stewart on the 5th Circuit. Her research focuses on governance of public schools and diversity in the legal profession.
I couldn’t be more thrilled than to have these guests joining me as we kick off this series. So, I want to set the stage first for our conversation with you, Professor Tolson and Professor Vladeck, and we’re going to go by first names so, Franita and Steve. Already there’s this myth and narrative that only a handful of Black women in the United States qualify to serve on the Supreme Court and for folks who are listening in you know that’s inaccurate. It’s utterly illogical and plays into baseless stereotypes and that’s just based on the standards apply to current Supreme Court justices and so, despite attacks on her qualifications, for example, Justice Sotomayor had more experience before being nominated than any other sitting justice and that remains the case today with the appointment of three new justices by Donald Trump. I believe that’s something, Steve, that you made mention of.
But I want to start us off with talking about demographics. How should we understand the Court’s demographics leading up ‘til now, and I’ll start with you, Franita, and then go to Steve.
00:03:40 Franita Tolson:
So, it’s been mostly white. We’ve had some, you know, departures from that, you know, Justice Clarence Thomas, Justice Sotomayor, Justice Ginsburg, a few others, but for the most part the history of the Supreme Court has been predominantly white men. So, to say that this particular appointment will be historic will be an understatement. I think that Black women bring a unique perspective to everything they do and I don’t think that that will be any different with the Supreme Court. So, this particular appointment makes me very happy because I think it disrupts a history that has been long problematic.
00:04:12 Michele Goodwin:
So, Steve, you’ve been spending quite a bit of time unpacking this for folks on social media, I follow you on Twitter, and you’ve really helped us to understand what this means in terms of clear demographics and so, can you give us some of that, and we had Justice Thurgood Marshall as the first person to integrate the Supreme Court, but what are the numbers that we’re looking at, just so people really understand it?
00:04:38 Stephen Vladeck:
Thurgood Marshall was the 96th justice in the court’s history after 95 white men. I mean, there’s some sniping on social media about Justice Cardozo but you know, let’s be clear, 95 white men. And you know, there have been 115 justices total up to Justice Barrett and of the 115 all but 7 have been white men. So, 108 and 7. And you know, I think what that reflects, Michele, is a couple of different things. It reflects first that, you know, up until Justice Marshall’s appointment no one thought anyone other than white men would be, you know, candidates for the Supreme Court. The first time a woman is in serious consideration is during the Nixon administration in the ‘70s after Marshall’s appointed.
And so, you know, the notion that like this is somehow, you know, an inappropriate skewing of demographics kind of misses the point that the demographics were inappropriately skewed for most of the court’s history and in many respects what this is really about is trying to actually bring back some semblance of diversity, and I say it back really quickly just to say it used to be that other forms of diversity were actually a structural commitment in the Supreme Court confirmation process, especially geographic diversity, back in the time when our geographic divisions were among the most significant political divisions in the country. And of course, that fell out of the process as well to the point where 8 of the 9 current justices, right? Spent the bulk of their professional careers, you know, in the Northeast.
And so, I think it’s…
00:06:11 Michele Goodwin
Eight out of nine. Eight out of nine.
00:06:14 Stephen Vladeck:
You might quibble over Justice Barrett but even if it’s 7 out of 9, and it was 8 out of 9 before Barrett replaced Ginsburg, versus the old school, Michele, where you had one justice per circuit. And so, I think, you know, it’s not just diversity of the likes that President Biden has so rightfully committed to and believably committed to, it’s looking at the court as meant to be, representative of what is the prevailing understanding of diversity at that moment in American history.
00:06:40 Michele Goodwin:
Dean Holley-Walker, it is such an honor and privilege to have you on the show with me and so, I want to turn to you because you’re the Dean at Howard Law School and Howard has had such a tremendous track record before the Supreme Court in shaping civil liberties and civil rights, and here I’m talking about alumni of the law school, its professors, its deans who played instrumental roles in the 1930s, ‘40s, ‘50s, ‘60s, ‘70s in terms of bringing cases that were ultimately heard before the Supreme Court in shaping how we understand civil liberties and civil rights today, even far beyond race.
And so, I’m wondering what these times mean to you in terms of President Biden promising to nominate a Black woman to the court and pushback against that, but also what this means to you as a dean, as someone who has to preside over a law school where there are women law students who hear this kind of rhetoric. How exactly are you processing this?
00:07:42 Danielle Holley-Walker:
It’s really interesting. Here obviously at Howard and I think throughout the country and throughout the world Justice Marshall is a celebrated figure because he was the first person to integrate the Supreme Court and obviously that came after a time where he became one of the most important Supreme Court litigators in the history of the Supreme Court and eventually served as Solicitor General so, also very important.
If you can see the visuals behind me, it’s Charles Hamilton Houston who was Marshall’s teacher and also one of the most important Supreme Court litigators of the 20th century and so, it is incredibly important to us. I think currently 70 percent of my law students are Black women so, when we talk about what it means in this moment in a law school atmosphere like mine, it means my students for the first time ever seeing a Supreme Court justice who looks like them, right? And so, when we talk about what do people aspire to, even when they are already in law school, there are certain doors that are closed for them and that’s what this really represents.
The fact that there has never been a Black woman on the Supreme Court means for my students up to this moment there was a door in our profession that was shut tight and locked because there had never been anyone like them on the court. And so, with this appointment it really does represent that door opening. So, as I’ve been so frustrated hearing the discussion about is this a racial as affirmative action hire, it’s like no, this door was locked closed. That means that there was ongoing discrimination against Black women in this setting and now all President Biden has done is unlock the door. That’s it.
00:09:23 Michele Goodwin:
Well, it is…
00:09:24 Danielle Holley-Walker:
And so, that’s a really important moment.
00:09:27 Michele Goodwin:
It is an important moment and I can’t help but think of Ruby Bridges. It’s been an image that’s come to mind over and over again. Seeing the image of a little girl, 5, 6 years old with Federal troopers, you know, escorting her to school to break down the barriers of segregation so that she could attend a school in Louisiana as the first Black child to do so. And in this case we’re talking about a different institution, we’re not talking about an institution of education but we’re talking about our courts and we’re talking about the United States Supreme Court as being an institution that has never had amongst its ranks a Black woman, and I want to turn to you, Zinelle.
Zinelle, you are one of the senior leaders at the American Constitution Society. You are at the American Constitution Society the Executive Vice President and it is the country’s foremost progressive legal organization that is weighing in on matters of the judiciary, and recently in Politico you mentioned that during the previous administration Republican senators worked with President Trump to confirm 234 people to the Federal bench and you mentioned that 84 percent of whom were white and 76 percent of whom were men.
Can you unpack a little bit about why you mentioned specifically those statistics to help to educate the American public about this moment and what it represents?
00:11:15 Zinelle October:
Sure. Thank you, Michele. So, it’s sort of picking up on the point that Dean Holley-Walker made that that door for so long has been closed to Black women in particular and people of color generally. And you know, speaking of kind of picking up the point that she made with that door being closed, I want to pause for a moment to ask, where’s the outrage from those same folks criticizing President Biden’s position to nominate a Black woman, where were they when President Trump’s two lists prior to his election didn’t contain one Black woman? Garrett Epps actually wrote a really great piece about this just today.
And the importance of sharing these lower-court numbers that President Trump put in place is that that balance has tipped even more. We need diversity on the court, diversity matters, that experience matters and we really want a court, a Supreme Court in particular, but also the lower courts, Michele, so I’m glad you raised that, too, that represents the diversity of the American people.
For most of our history as Steve and Franita and Dean Holley-Walker mentioned, it was uniformly white and male and that goes for our lower courts as well. We are very much looking forward at ACS to having a first Black woman justice on the Supreme Court. And step back and think about that, in 2022. It’s past time.
00:12:35 Michele Goodwin:
Who are the majority of Americans? It’s worth noting that there is a tremendous distance between the demographic makeup of those who sit on the court, where they were educated, where they grew up, and what they have done with their careers.
00:12:55 Franita Tolson:
I think it’s because our baseline as a society is still white and male. If you think about it, Michele, you make a point about Ruby Bridges. She’s only 67 years old, right? This was not a long time ago. I think about the fact that Justice Marshall was appointed to the court in the late ‘60s. My oldest sister was born in the late ‘60s. These are all things happening in the lifetimes of people who are still living.
And so, I think because that baseline is white and male, when people of color are actually rewarded for the hard work that they’ve been doing, right? There is no doubt that the list that’s being floated are full of wonderful, competent women who could do this job. But because it’s so different from that baseline, they have to endure unfair attacks. I mean, we’re seeing that with the fact that there are attacks on a nominee that hasn’t been named yet, right? So, just by definition you have to have a problem with the category of people who are on that list as opposed to the person themselves.
And so, because we are finally getting to a point where we recognize that society is not just white and male, people who are in that category want to push back against that.
One other point, you were very hesitant in saying it seems like President Trump had no plans to appoint a Black woman. I would go even further than that.
00:14:07 Michele Goodwin:
00:14:08 Franita Tolson:
When people show you who they are you believe them, right? If he wanted to appoint a Black woman or had any intention of doing it there would have been some on that list. I would say that the only difference between what President Trump has done and what President Biden has done is that he just didn’t say the quiet part out loud, right? President Biden is just very clear about the importance of diversity so, he articulated his intention to diversity the court. President Trump does not care about diversity so, he articulated his intention not to appoint diverse candidates just by virtue of the fact that he excluded them from the list. There is no difference between these two things.
00:14:42 Michele Goodwin:
Well, and certainly to your point and then I got to go to you, Steve, and then Dean Walker, which is that when one looks at the Federal bench, the Federal Circuit Court of Appeals, he nominated no Black people whatsoever. None were confirmed at all and one can’t say that that was not intentional, right? One can’t say that it was just a mistake and…
00:15:04 Stephen Vladeck:
And of Trump’s 247 judicial nominees 2 were Black women, right? Which is less than one percent, right? Compared to 11 from President Biden so far, right? Compared to 26 from President Obama over two terms. I mean, it’s a crazy statistic that in one year President Biden has already put more Black women on the Federal bench than any Republican President ever, and he’s about to pass the combined total of every Republican President ever.
And so, you know, when you asked the question, Michele, I mean, you know the answer, of course, right? Which is that there is a universe of people out there who just cannot accept this. Franita puts it that there are Black women who are and deserve to be and rightly should be in whatever the top tier is of how we are thinking about qualifications for the Supreme Court. And I think we saw some of this ugliness, you know, on Twitter and in various other media after the President’s announcement that he was going to recommit to his campaign pledge where you saw people referring to the notion that it would have to be a…this is not my words, a “lesser Black woman.”
I mean, look at the qualifications of some of the folks who are on this list and that’s without even regarded how much they had to overcome to even get to where they were and so, you know, it is such a powerful example to me as the one white guy in this conversation of subconscious but deeply structural racism that pervades our profession.
00:16:30 Michele Goodwin:
And Steve, I want to actually come back to that because you produced a list that helps us to see, right? Really put our eyes and to be able to articulate, you know, vocally about what these qualifications represent, right? Because the line shifts when we’re talking about people who have been nonwhite so, we’re going to get to that.
But Dean Walker, Holley-Walker, I wanted to turn to you because there’s something that is represented I think in the rhetoric that as Ted Cruz says, it’s “offensive” that President Biden has announced that he will nominate a Black woman. There have been those who have said that any black woman essentially would be lesser and then the remake of that, the revision is that, you know, I don’t mean lesser, I mean just less qualified as if somehow that means something different.
What message does that send to all Black women and girls? I mean, what is really…I mean, if we had to just sort of be very explicit about what this rhetoric means, what does it say?
00:17:40 Danielle Holley-Walker:
I mean, to steal the title of a colleague’s book, we are presumed incompetent, right? So, it’s a presumption that Black women are not prepared for this and I do want to rewind all the way to the last Obama appointment, what should have been the last Obama appointment where remember that in that conversation there was a question about should he nominate a Black woman, and I remember the articles that came out and at that time, you know, there were some of the women who are currently being mentioned but President Biden has really changed the shape of this conversation already by impacting the lower courts, right?
So, by having eight Black women nominated…only eight Black women have ever served on the appellate court before President Biden was elected and to have him nominate eight Black women, now the conversation has changed because we have more in the pipeline. But I think when you hear someone say, this will need to be a lesser nominee, number one, it tells me they don’t know anything about the legal profession, right? Because the number one thing I can say is that if we produce a list of five, that’s a little bit frustrating to see six women, you know, talked about when really I could off the top of my head tell you 30 Black women right away who would be over qualified when comparing their qualifications to other people who were currently sitting on the court when they were nominated.
We have about 30 Black women who would be considered over qualified, as Black women often are. When we are put into positions like this we are often over qualified and I think what Steve did and I guess we’ll get to that, is when I read the list of qualifications so, for example, when you talk about one of the people who’s talked about as the top, they’ve been a state court judge, they’ve been a law firm partner, they’ve been a Federal court judge for longer than almost everyone who’s currently sitting on the court. None of them I don’t believe were state court judges, either.
So, that’s a list of this woman’s qualifications. Again, it’s not a matter of are they qualified, typically Black women to get to the highest positions in the legal profession and every other profession tend to be over qualified for the jobs that we actually get.
00:19:51 Michele Goodwin:
Well, and I want to spend just one more moment on that because there are people who have laughed that off and say, oh, ha ha ha, right? You know, I don’t believe it. But can you help our audience understand exactly what you’re talking about in terms of that process in preparing and needing to be over qualified to do the work to get the jobs that those who have not achieved what Black women have, what they have to do.
00:20:15 Danielle Holley-Walker:
So, you can find this in pretty much every setting. I’d encourage you to look at the websites of a large law firm or look at the faculties of a law school and you will see that the credentials that Black women in particular need to have to have those positions are typically higher than the credentials, similar to or higher, and I would say a lot of times higher than the credentials of others in terms of how they look on paper. What schools they went to, what jobs they needed to be considered to be qualified for, how many publications they needed, what their track record was before, and as we’re seeing with the “short list” here, these women are tremendously qualified.
And when you start comparing them to the last, you know, number of justices that have been appointed, I won’t say how many but we can look at, we can look at the last 10 and I would put every single one of let’s say the top 6 who’ve been named, if you put their credentials against them you will see that they are not just qualified but many of them were considered to have more years of service in the Federal judiciary, more years of service in terms of practice because remember, very few of the justices who we’ve seen recently appointed have a lot of practice experience. Some of them have state court experience so, the breadth and depth of their experience measures up, I wouldn’t say quite well but in an exceptional way against many of the recent appointees.
And that is no, you know, that’s no slam against the recent appointees, what it is, is a statement about do we understand what Black women have achieved in the legal profession. I think what we’re seeing is someone said they need to know the difference between a J.Crew catalog and the law. That just tells me there’s no understanding of who Black women are. Period, but especially in the legal profession.
00:22:04 Michele Goodwin:
Yes. It was what some would say was a real gut punch, but to your point it just shows a significant lack of knowledge and true ignorance when someone says that and I couldn’t help but wonder if that was also meant to be a kick at the former first lady, Michelle Obama, who popularized people thinking about J.Crew, but what a debased comment.
But Steve, I want to turn to some of the statistics that you’ve put online to really help crystalize exactly what, or at least who will intervene in the discussion about qualifications because what you’ve shown are the number of years of service on the bench before appointment and I want to just turn it over to you to just talk about that list, why you produced the list and what the list tells us.
00:22:56 Stephen Vladeck:
Yeah. I mean, I produced the list because I was very, very frustrated by people who don’t know what they were talking about, you know, making hay out of just the notion that…just to take one example, the Judge Ketanji Brown Jackson who’s been on the DC circuit for about a year, lacks the requisite judicial experience to be a Supreme Court nominee. Never mind that she’s been on the district court since 2013 which I’m bad at math but that’s over eight years of prior judicial experience. Justice Kruger, Judge Childs, I mean, so many of the folks we’re talking about, and that’s without regard to the folks who aren’t judges but have equally impressive, you know, private and academic legal experience, right?
So, I wanted to actually just put some data together about what prior judicial experience has actually looked like for Supreme Court justices going back however long and so, I ran the data on every justice. I started with every justice appointed since 1950 and I decided to run it all the way back to 1900. You know, there comes a point where it’s such a different time and such a different court that I don’t know that this is telling us much, but at least over the last, you know, X number…almost however you slice the data, Michele, prior judicial experience has not been a prerequisite to serve on the Supreme Court and certainly significant prior judicial experience has not been a prerequisite.
So, what I found was if you just look at the last, you know, 50…everyone says 1950, there have been 28 justices appointed in that time. Seven of the 28 so, one-fourth had zero prior judicial experience, had never been a judge a day in their lives, and 15 had fewer than 5 years of prior judicial experience.
So, you know, in that context where you have a quarter with no prior experience, where you have a majority with less than five years of prior judicial experience, the notion that someone…again, not the only person to talk about, but like Judge Jackson who has eight plus years of prior judicial experience plus her time before that as a public defender plus all of her other, I mean, like the notion that these are somehow not sufficient qualifications I think gives up the game that the folks who are making this charge one, don’t know what they’re talking about, and two, are using it as code for something else.
So, the short bottom line is that prior judicial experience has never been a prerequisite for the Supreme Court, it hasn’t even been lately, look at Justice Kagan. There’s no correlation between…
00:25:23 Michele Goodwin:
And Justice Amy Coney Barrett, less than a year.
00:25:26 Stephen Vladeck:
Right. So, you know, but the other piece of this, there’s a flip side, Michele, which is we heard similar charges leveled against then Judge, now Justice Sonia Sotomayor when she was nominated to the Supreme Court in 2009. Of all of the justices on the Supreme Court right now the one who had the most prior judicial experience at the time of her confirmation was Justice Sotomayor and you know, and she’s the only one of them who was ever a trial judge, and I think we see a lot of both of those experiences in exactly what is different and to me compelling about her jurisprudence compared to the rest of the court’s.
00:26:04 Michele Goodwin:
And that actually gets us back to the points that were made by Dean Danielle Holley-Walker about the exceptional qualifications that then are papered all over and made into something else so, you have then Judge Sotomayor as a nominee with this exceptional experience, checking all of the academic credentialed boxes, etcetera, and exceeding what would be the experiences of people who were already seated, but being talked about as being lesser than, unqualified, etcetera. And to your point, one can only come back and think about that as code for something else.
And so, as we break down this code and what this code represents, Zinelle, in the Politico piece that we’ve talked about already in this episode, I want to turn back to it because you also mentioned that a Black woman justice might actually benefit the GOP. Can you explain the logic behind what that argument is, and I also think that it’s helpful that people think about the role of what a justice does. It’s not just hearing an oral argument and then immediately making a decision, but it is also a matter of deliberation and communicating with colleagues, etcetera. So, can you unpack a little bit about what that means?
00:27:30 Zinelle October:
Sure Michele. So, what I argue in the piece and really firmly believe is look, in the past this has been done, nominations, confirmations, in a bipartisan manner and we’d like to see that continue. There’s no reason to not, and the court is really at a point now of a legitimacy crisis. People don’t believe in it, overwhelmingly Americans aren’t feeling confident with the court, and they should really take this moment, the GOP, to think about what that means because people like me are watching, and others, and instead what we’ve heard them come out with are these racial slams, even though someone hasn’t been named.
And so, I urge them to take a step back, think about what this moment means, and also put it into context. While it’s absolutely important to put a Black woman on this court for all sorts of reasons, at least from their perspective doing so is not going to change the makeup of the court where it is right now and so, it doesn’t cost them as much if you will, and so, I really encourage them to think about the legitimacy crisis that we’re facing. Is the court controlled by a conservative super majority that really was achieved by the rights filling two seats which was discussed earlier.
And so, they need to go ahead and confirm whoever is nominated. I know President Biden is taking the consent and advice very seriously so, he’s making his rounds right now and I just urge them to be open.
00:29:05 Michele Goodwin:
Well, that’s really important this point that you make about the legitimacy of the court right now and the waning confidence that the American public has in the court, and one sees this even in recent times where Justice Roberts seems to be fighting for the court to be perceived as legitimate and centered in the rule of law and not partisan ideology. We see this with the Chief Justice of the Supreme Court siding with liberals in reproductive rights cases, and then very recently we have a ruling out of Alabama and a ruling that relates to gerrymandering and voting rights and it’s really disturbing for so many of us, and it’s a 5 to 4 decision with the Chief Justice siding with the liberals.
Franita, I want to turn to you and then I want to turn to you, Steve. What is this case about and what does it represent, the fact that it’s a 5 to 4 decision by the court?
00:30:10 Franita Tolson:
Well, the Alabama case involved the Voting Rights Act challenge to maps drawn by the Alabama state legislature that only drew one majority, one minority in the district despite being able to draw secondly, and the second one in particular in an area where African-Americans were geographically compact, making up then a majority in their own district. And also there’s racially polarized voting in Alabama so, it’s a pretty straight-forward Section II violation.
In the lower court, and let’s keep in mind the three judges are not like radical liberals, right? It’s two Trump appointees on this panel who found that there was a Section II violation and so, for the Supreme Court to say, look, you know, even though we are nine months out from the general election if we force the state legislature to redraw these maps it will cause chaos and so, therefore we are going to stay the lower court decision.
It’s really outrageous. I think it’s outrageous in a sense that the Section II violation was quite clear and the lower court was quite thorough in sort of building the record to show that the violation was there and so, for the court to sort of come in at this stage of the proceedings and refuse to force the state legislature to redraw the maps is pretty outrageous.
But I do think what it reflects is a hostility that we already knew was there, right? Shelby County versus Holder and taught us that the court is hostile to the Voting Rights Act. In the Brnovich decision which came down in the last couple years also told us that Section II of the Voting Rights Act was on the chopping block, right? You had a decision where the Supreme Court added a bunch of factors that plaintiffs have to take into consideration in trying to establish a Section II violation. Fact is they are untethered in the legislative history and make it very difficult to establish a violation of Section II.
And so, I think if you look at the broader context the Alabama case is not that surprising, but I do think it still feels brazen for the court to come in at this stage of the proceedings when the case hasn’t been fully argued and weigh in the way that it has.
00:32:08 Michele Goodwin:
Steve, what does it represent that the Chief Justice sided with the liberals in this case?
00:32:15 Stephen Vladeck:
Yeah. I mean, if you have a Voting Rights Act decision that’s too conservative for John Roberts I think that tells you something. You know, Franita says it’s not surprising and I guess that to me is the most damning indictment of what the court did in the Alabama case which is, you know, five years ago it would have been stunning for the Supreme Court to intervene in the way that it did in the moment it did. And you know, and I take Chief Justice Roberts’s dissent, and he wrote separately to explain his dissent, to be not that he actually is convinced that the lower court decisions are right. I think he, you know, he is sympathetic to me problematic change in the understanding of Section II for which Alabama is arguing, but that this kind of emergency order freezing these district court decisions, putting the maps back into place, this is supposed to be based on new law.
And so, you know, if as everyone seems to be conceding the district courts got it right based on the law as it stands today. The fact that the conservatives on the court want the law to be different tomorrow is not supposed to be and historically has not been a basis for this kind of interim emergency relief and it sort of gives up the ghost.
Some of this gets lost in the technicalities of appellate procedure but there’s a remarkable footnote in Kavanaugh’s concurrence where he says, you know, Alabama has a chance of winning on the merits but of course, so do the plaintiffs, to which my response is, wait, like if it’s 50/50, like if you’re saying this is a close case on the merits, you are literally saying that Alabama has not carried its burden for showing that you need some kind of special protection before the election.
The only other argument, and this is something Franita knows as well as anyone is that there’s a special rule for election cases based on this incredibly cryptic, you know, 2006 Supreme Court decision called Purcell, but the election in Alabama is nine months away and you know, and the voters, the plaintiffs in these cases filed the suit the day after Alabama finalized these maps. I’m not, like unless the rule now is that states get one free racially gerrymandered map each election cycle, you know, this decision is just about indefensible and in that regard like, Franita’s right that it’s unsurprising. I just think it’s horrifying that we’re at a point where indefensible decisions are unsurprising.
00:34:36 Michele Goodwin:
Dean Holley-Walker, this brings us back to people wondering, well, what effect could a Black woman have on the court, a court that already has as Zinelle has mentioned, a super majority that’s conservative. She would replace Breyer, there are only three liberals on the court so, some are saying that there couldn’t really be a kind of substantive effect, and what’s your response to that?
00:35:07 Zinelle October:
I think there’s a tremendous substantive effect. I think we don’t have to look any farther than Justice Sotomayor to see what happens when you have someone with a different perspective who’s on the court, and I would also say Justice Marshall is an excellent example of this, Justice Ginsburg was an excellent example, that the substantive difference is you get to hear the voices of the people who do not agree with. So, we can sit here as academics and as citizens and say we’re deeply disturbed, we believe these decisions are indefensible, but there’s something to having those words there in a dissent where it explains why the court got the context wrong, why they are so out of step with what is the currently-established law.
All of those points when made in dissent, as we’ve seen Justice Sotomayor do so powerfully and as Justice Marshall did so powerfully. When we all know when we’re teaching in the classroom and we’re teaching their decisions, it’s one thing for us to offer our opinion, it’s another thing to have a justice on the court who’s offering the perspective of those who’ve been left out, of those who’ve been marginalized, of those Black voters in Alabama who will be seriously damaged by the decision yesterday.
It makes a huge substantive difference, and even if you find yourself in dissent for years and decades sometimes on the court, that impact is tremendous and I think as Zinelle and Franita said earlier in the conversation, Black women have a different life experience, they bring different things to the table. We know that those things will be reflected in the decisions that they write, and even like we’ve seen with Justice Sotomayor, the decision to write separately, right? Sometimes she’s all by herself writing separately and a lot of those dissents are things that are core to the humanity of people who traditionally have been left out and left behind in American society.
00:37:04 Michele Goodwin:
But really, this is the point, isn’t it? There are so many Americans who are feeling disconnected from the United States Supreme Court and its justices, wondering whether the justices can actually relate to the real day-to-day experiences that they have, and when I think about it, my former colleague and frequent co-author, Dean Erwin Chemerinsky, has written about the Supreme Court having a heyday that extended about 16 or 17 years where there was clear devotion to paying attention to civil liberties and civil rights, and that since that time the Supreme Court has not necessarily shown a commitment to understanding and lifting up the voices, experiences, etcetera, of the people who happen to be most vulnerable in our society.
That’s a conversation that we really need to get back to. What I want to turn our conversation to now is actually some of the names of the folks that we’ve been hearing about, and believe me, listeners, there is a very long list as Dean Holley-Walker has spoken about, and we’re going to get into the thick of many different names that are being floated and some that are not, and we’re going to start off on the show today talking about Judge Ketanji Brown Jackson.
What is it that we know about her? Help to unpack a little bit about her candidacy and what it represents. I turn to you, Steve. All right, tell us about the judge, what do we know?
00:38:33 Stephen Vladeck:
Well, I mean, I alluded to this a bit before but I mean, Judge Jackson was was confirmed to the DC circuit last year. Of course, the DC circuit is historically the most powerful Federal Appeals court, not because it’s in DC but because it has such dominance over big questions of administrative law. Before that she had spent eight years on the DC District Court so, she’s appointed by both President Obama and President Biden. She’s from DC, although she went to high school in Miami. She graduated from Harvard magna, she went to Harvard Law School where she was a supervising editor of the Law Review. She clerked for a district court, she clerked on the 1st circuit, she’s got…
00:39:12 Michele Goodwin:
She’s got a lot going on.
00:39:12 Stephen Vladeck:
I mean, you know, but what I find especially relevant about Judge Jackson’s pre judicial experience is that she was a special counsel to the sentencing commission for the better part of two and a half years, and then she was a public defender for a couple years, and there is no one on the court right now was ever a public defender. And so, I think, you know, it’s not just that she has this incredible and impressive academic portfolio, it’s not just that she has, you know, these litigation chops, it’s not just that she has these judicial chops, it’s that she also has an experience representing indigent criminal defendants in our legal system that is not reflected by any of the current justices on the court, and frankly hasn’t been reflected by almost any of the justices on the court in its history, and so that’s, you know…
00:39:59 Michele Goodwin:
That says a whole lot. Okay.
00:40:02 Stephen Vladeck:
I think there’s a whole lot to this package that I find, you know, really redeeming, and for those who want the more craven political piece of it, you know, just last year three Republicans, Senators Collins, Graham, and Murkowski joined all 50 Democrats and voted to confirm her to the DC circuit at a time where everyone understood that she would be on President Biden’s short list.
00:40:22 Michele Goodwin:
00:40:22 Stephen Vladeck:
00:40:21 Michele Goodwin:
Well, you know, and it’s unfortunate that we had such a voting block that didn’t, but you’re right. On the positive of that those who said, okay, I see this candidate for who this candidate is with these stellar qualifications. All right.
Then there’s California Supreme Court Justice Leondra Kruger. She joined the California Supreme Court in 2015, clerked for Justice John Paul Stevens. Dean Danielle Holley-Walker, Professor Tolson, what does that nomination represent? Maybe we’ll start with you, Franita.
00:40:58 Franita Tolson:
Justice Kruger clerked for Stevens, and I think Judge Jackson clerked for Breyer?
00:41:03 Michele Goodwin:
For Breyer. Yes.
00:41:03 Franita Tolson:
Right. And so, had they not been Black women we would have been having the conversation about how they have been groomed to replace X justice, right? We would not be having this abstract conversation about whether or not a Black woman is qualified or lesser groomed.
00:41:17 Michele Goodwin:
Whether they read fashion catalogs and this is how they come to understand law, right?
00:41:22 Franita Tolson:
Exactly. So, I mean, these women truly are exceptional and just like Judge Jackson I think that Justice Kruger will bring the unique experience to the court. She worked in the Solicitor General’s office. In addition to her experience working for Justice Stevens she is on a state court, right? Like, this is all a way of not just…I mean, we’re talking about this in terms of Black women and their qualification. These women in an of themselves show that the group of women who are being considered for this position is not a monolith, right? They have a diversity of experience that will bring a unique perspective to the court.
And I think that Justice Kruger is another example of a candidate who would bring a different perspective than what we’ve seen before.
00:42:06 Michele Goodwin:
So, Dean Holley-Walker, let’s talk about District Court Judge J. Michelle Childs. She’s a Federal trial court judge in South Carolina. Her judicial experience includes 4 years in state court, 12 years on the Federal bench. We know that Representative James E Clyburn is campaigning hard for her nomination, and there’s potential GOP support, at least Senator Lindsey Graham has said that he likes her. He said that it’s good for the country to have a court that looks more like America. Some people may not take that very far. It was also Senator Lindsey Graham who had given a nod to Merrick Garland to serve on the United States Supreme Court and that seemed to evaporate.
But that said, Dean Holley-Walker, tell us about what’s unique about District Court Judge J Michelle Childs and what she would bring to the court.
00:43:01 Danielle Holley-Walker:
I think Judge Childs has a wealth of experience as a litigator and was a labor and employment lawyer and the first Black woman to be a partner at a major law firm in South Carolina. I think one of the other things that Judge Childs brings to the table that Steve talked about a little bit earlier is for the first time in a long time, geographic diversity. So, to have a justice from South Carolina, a state that has not had a justice represented for a very, very long time, and also when we begin to talk about diversity of life experience, every justice who currently sits on the court has what, except for one, I think has what we would call kind of a traditional Ivy League background, right? Harvard Harvard, Harvard Yale. We can throw Columbia into the mix and a few others.
Judge Childs went to University of South Florida for undergrad. She went to University of South Carolina and is a very active graduate of the University of South Caroline School of Law. And I do think the inclusion of public universities into the mix of who we have on the Supreme Court is incredibly important. We talk about legitimacy of the court and we talk about differing perspectives, and so, Judge Childs brings all of that to the table I think in a way that is very attractive, and of course, this incredible wealth of judicial experience in 12 years on the district court plus her additional time that she served on the state circuit court in South Carolina.
00:44:34 Michele Goodwin:
There is also Leslie Abrams Gardner, a Federal District Court judge in Georgia, who happens to be the younger sister of Stacey Abrams, but I want to turn to you, Zinelle, and ask about another candidate whose name has been floated, and that is Sherrilyn Ifill. What might a nomination of Sherrilyn Ifill bring to the United States Supreme Court?
00:45:00 Zinelle October:
Well, Michele, I’m glad you mentioned her, too, because I do want to emphasize that there are many exceptionally-qualified Black women lawyers both within and outside of the Federal judiciary and you know, the press has thrown out a lot of names and from our perspective at least we’re celebrating, just taking a step back to celebrate that it will be a Black woman and will be happy and very excited to see what the ultimate choice that the President makes.
But Sherrilyn represents something very different here in that she has extensive nonprofit experience, longtime leader as Director-Counsel of the NAACP Legal Defense Fund, which is really interesting, especially as we think about the importance of a Black woman filling this role, coming in with the life experience, having seen the issues that this very court would address overwhelmingly affect people of color, women, Black women in particular. This court, of course, hears so many big cases. We talked about voting that’s Franita went through so carefully for us, but there’s also reproductive rights, we’ll see what happens with that, environmental rights, you know, criminal justice.
We could go on and on with so many areas that Black women and people of color are affected by and they don’t have a court that really understands that lived experience.
00:46:24 Michele Goodwin:
Well, and I will also say that on this call there’s another name that’s been floated, too, and that’s Dean Danielle Holley-Walker who has also been a federal clerk as well and brings the type of credentials that we’ve seen on the United States Supreme Court and more beyond that.
So, we reach this time in our show, it goes by way too quickly, where we ask for a silver lining and what we see on the horizon that’s a positive thing, and I certainly want you back on the show because I will say that we are going to be doing a road toconfirmation so, this conversation will continue. But I want to ask you what you see as a silver lining going forward, and I’m going to start with you, Steve.
00:47:12 Stephen Vladeck:
I think there are two big silver linings. I mean, first is, you know, as Zinelle put it, I’m so excited by really whoever President Biden nominates because this is a case where I’m not worried about it being someone who went to the same elite private high school with someone who’s already on the Supreme Court, right? Like, this is a case where no matter who we’re talking about it’s going to be someone who is going to enrich and enliven the court in so many different ways, ways that we can’t even predict. I mean, I think that’s the coolest part.
And so, you know, I think the biggest silver lining is that even if this nomination is not going to move the center of gravity on the court which I think we all understand it won’t, you know, new energy, new blood, new perspectives, new diversity, it’s such an important thing for that institution period. And if there’s another piece of this, I also think, you know, the justices are not automatons, they are humans and we know from experience and we know from plenty of examples, we know from their own, you know, I guess confessions that there have been justices whose views have been shaped and changed by exposure to people and experiences and things that they hadn’t confronted in their lives before.
Chief Justice Rehnquist moves dramatically on the question of sex discrimination over the course of his career, right? At least in part, at least according to Justice Ginsburg because one of his daughters was a single mother, right? And if there is a silver lining it’s just like diversity in all forms is good for institutions like the Supreme Court and so, I think, you know, yes, there’s going to be ugliness, yes, the court is going to keep doing things that at least Franita and I find hard to defend, but like this is to me, you know, so much better than the alternative of just keeping on with where we were that it’s a nice court of optimism in an otherwise I think worrying moment in our political and legal discourse.
00:49:08 Michele Goodwin:
Thank you so much for that, Steve, and for underscoring the importance of broad scale diversity. Franita, what do you see as a silver lining?
00:49:16 Franita Tolson:
Well, you know, I root for anybody Black, just as a general proposition. But I will say that it’s nice for Black women to finally get their flowers. We’ve been doing this work and we think it’s important and we value it. If you look at the list of people who are being considered for this position, they are exceptional women and they are exception even though they often face the prospect of not being recognized for being exceptional, right? They do the work because the work needs to be done and that is really the story of Black women in this country, trying to make this country better but doing it without any expectation of anything in return.
So, it’s really nice to see a qualified group of Black women finally possibly get their flowers, right? Get some acknowledgement that they have put in this work, that they have made this mark, that they have changed the world already and they are being rewarded with something that they aren’t, right? No one asked Black women in 2016 how we felt about being excluded from Trump’s list, right? So, excuse me if right now I don’t care how white dudes feel about the fact that they’re not on the list, right? It is our moment and I’m walking it. That is a silver lining. Bring the attacks, because as Dean Holley-Walker pointed it out, our record stands up to it. Black women are fabulous and the women on this list are fabulous and we finally get our moment. So, we’re winning.
00:50:28 Michele Goodwin:
Well, there is something to be said about this moment of talking about the fabulousness and really helping to set the stage for people to really understand beyond the attacks, this is what Black women have been doing, this is what Black women law students have been doing, these are the kinds of ways in which they have been showing their might, and move the line though you may, the reality is that their qualifications extend oftentimes beyond, most often beyond those who are in the ranks of where they’re looking to get to.
Zinelle, silver lining?
00:51:01 Zinelle October:
Lining to me, Michele, is that Black women are finally feeling seen with this process, right? It’s so exciting in so many ways and it’s way past time. I’m already seeing from our network and even outside of our network increased interest in our courts and who sits on them by Black women and other people of color at a time where the court has not worked for us. So, I look at this as one step toward repairing the court’s legitimacy and I hope it’s just one of many to come.
00:51:34 Michele Goodwin:
Thank you so much for that, and Dean Danielle Holley-Walker, please close us out. What do you see as the silver lining going forward and as part of this process?
00:51:42 Danielle Holley-Walker:
The silver lining to me is that this door will finally be opened and I think, you know, it is a realization in 2022 that there are many doors that are still closed firmly to women of color and particularly to Black women. Black lawyers still only make up five percent of our profession, we’re severely underrepresented. Black women only make up 2.5 percent of our profession so, when I look on CNN and I look on MSNBC and I see a picture of 6 or 7 Black women that are on the display and they are talking about the deep qualifications of these women, it lifts up people all over the country.
It lifts up our law students who look like these women, it lifts up people who will never be lawyers but can look up and say okay, it’s possible for me to do anything. Whoever knew that there was a Black woman who went to Harvard College, Harvard Law School, was a public defender, clerked for a Supreme Court Justice, and there are a lot of people in our country who for the first time over the last two weeks have discovered that there are dozens and dozens of Black women who are making their mark in the legal profession and if we put this spotlight in other fields, if we put it in biology, if we put it in medicine, if we put it in public health, engineering, anywhere, we would see that Black women are similarly achieving these incredible things despite all the obstacles.
And so, for me that’s a huge silver lining to see the women in our profession, some of them, a small, small group of the women in our profession who are achieving extraordinary things get their moment in the sun because it means that when they have their moment in the sun there will be dozens who will follow after them, there will be hundreds, there will be thousands of Black women who trace the first moment when they thought about becoming a lawyer, when they thought about becoming a judge, to the moment when they saw those 6 or 7 Black women on their screen being talked about for the Supreme Court and that to me is powerful for us, for our daughters, for our nieces, for the women in our lives who are growing up and who look like us to have that moment.
00:53:48 Michele Goodwin:
Guests and listeners, this has been my honor, privilege, and pleasure to be with Dean Danielle Holley-Walker, Professor Franita Tolson, Professor Steve Vladeck, and Zinelle October from the American Constitution Society. Thank you all so much for joining me.
Guests and listeners, that’s it for today’s episode of “On The Issues with Michele Goodwin.” Time goes by way too quickly. I want to thank my guests, Dean Danielle Holley-Walker, Professor Stephen Vladeck, Professor Franita Tolson, and Zinelle October, Executive Vice President at the American Constitution Society for joining us and being part of this critical and insightful conversation. And to you, our listeners, I thank you for tuning in for the full story. We hope you’ll join us again for our next episode where we will be reporting, rebelling and you know telling it just like it is as usual. It will be an episode you will not want to miss.
And for more information on what we discussed today, head to msmagazine.com and be sure to subscribe. If you believe as we do that women’s voices matter, that equality for all persons cannot be delayed, and that rebuilding America, being unbought and unbossed and reclaiming our time are important, then be sure to rate, review, and subscribe to “On The Issues with Michele Goodwin” in Apple podcasts, iHeart Radio, Google Podcast, and Stitcher. We are ad free and reader supported. Help us reach new listeners and bring the hard-hitting content you’ve come to expect by rating, reviewing, and subscribing.
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This has been your host, Michele Goodwin, reporting, rebelling and telling it just like it is. “On The Issues with Michele Goodwin” is a Ms. Magazine joint production. Kathy Spillar and Michele Goodwin are our executive producers. Our producers for this episode are Roxy Szal, Oliver Haug, and Nassim Alisobhani. Our social media intern is Lillian LaSalle. The creative vision behind our work includes art and design by Brandi Phipps, editing by Will Alvarez and Kyle Goode, music by Chris J. Lee, and social media assistance from Lilian LaSalle.
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