Black woman nominee to Supreme Court will make “long overdue” history

Photo shows Supreme Court of the United States, First Street Northeast, Washington, DC. Photo by Adam Szuscik on Unsplash.

Any day now, President Joe Biden is expected to announce a Black woman as his nominee to the U.S. Supreme Court, a historic first.

Biden affirmed last month that he will nominate the first Black woman to the high court, declaring such historic representation is “long overdue” and promising to announce his choice by the end of February. 

The historic announcement is expected to be made during Black History Month and just days before the beginning of Women’s History Month in March at a time when the nation is grappling with gender and racial equality. 

The president affirmed his campaign promise during a White House ceremony announcing the retirement of Justice Stephen Breyer, who will have spent nearly 28 years on the Supreme Court by the time he leaves at the end of his term. 

Biden promised a nominee worthy of Breyer’s legacy. 

“I’ve made no decision except one: The person I will nominate will be somebody of extraordinary qualifications, character and integrity,” he said. “And that person will be the first Black woman ever nominated to the United States Supreme Court. It is long overdue.”

When Biden announces his nominee, expect a great drama worthy of an Oscar to come from Republican senators and conservative media in opposition. 

Some in the GOP have already mocked Biden’s promise to nominate a Black woman, as a choice based on affirmative action and politics. 

U.S. Sen. Ted Cruz, R-Texas, called Biden’s promise to nominate a Black woman to the U.S. Supreme Court insulting to Americans and the nominee. Cruz is missing the larger goal of Biden’s overarching pursuit to diversify federal courts.

No Black woman has served on the Supreme Court before, and only five women have served on the high court.

Lena Zwarensteyn, senior director of the Fair Courts Program at the Leadership Conference on Civil and Human Rights, effectively refuted Cruz’s statement that Biden’s promise was offensive and would exclude the best candidates. Zwarensteyn highlighted that the list of Black women being seriously considered for the role was filled with candidates who have the legal qualifications and experiences to fill the role.

“We know that they are the most qualified, they have a real depth of intelligence, they have the qualifications, they have the experience,” Zwarensteyn said. “To think that there is one ultimate best pick is wrong.”

Zwarensteyn said Biden’s promise to nominate a Black woman affirms a decades-long push to diversify federal courts — a trend that makes judicial rulings more fair as the justices making them will have a better understanding of how the law is lived and its impact on different people. She said an unrepresentative court makeup diminishes public trust in the judiciary.

To his credit, in the first year of his presidency, Biden placed more judges on federal courts than any president did in their first year since Ronald Reagan, and his choices have been notably diverse.

“As many know, our courts aren’t working for all of us. They seem to benefit — because they often do — the wealthy and powerful and not all of us ...” Zwarensteyn said. “For many, many, many presidential administrations, the calculus of who would be nominated for the Supreme Court unfortunately often excluded Black women and others.”

Cruz, like too many in the GOP, ignored the fact that as a Republican presidential nominee Reagan promised he would name a woman to “one of the first Supreme Court vacancies in my administration.”

“It is time for a woman to sit among our highest jurists,” Reagan said during his campaign for president. “I will also seek out women to appoint to other federal courts in an effort to bring about a better balance on the federal bench.” 

Candidate Reagan made the pledge to refute charges that he was insensitive to women’s rights in “reaction to criticism of his opposition to the Equal Rights Amendment,” the Washington Post reported at the time.

President Reagan fulfilled his campaign pledge by nominating Sandra Day O’Connor to become the first female Supreme Court justice.

Reagan’s pledge to nominate a woman was calculated to boost his campaign just as Biden made the early promise to win Black voters during his stalled campaign.  

Biden’s expected Supreme Court nominee will be historic. 

But more than history is at stake. He needs to keep his promise to nominate the most qualified Black woman and not worry about appeasing conservatives. 

While bipartisan support would be preferable it is not necessary. As Republican Senator Lindsey Graham of South Carolina points out if “Democrats hang together” they can replace Breyer without a Republican vote. So, there is no need for Biden to pick a so-called compromise nominee who does not offend Republicans. 

Republicans were united in blocking now-Attorney General Merrick Garland from even getting a hearing when he was nominated for the Supreme Court during the final year of Barack Obama’s presidency. Obama had selected Garland as a compromised choice that he thought would get some Republicans support. However, then Senate Majority Leader Mitch McConnell said the senate should not consider a nominee in the last year of an election. But then, four years later, Republican senators did an about-face and pushed Amy Coney Barrett’s nomination through just days before the presidential election.

Barrett was one of three justices, former President Donald Trump appointed to the Supreme Court, moving the court further to the right.

Republicans changed the Senate rules during the Trump era to allow simple majority confirmation of Supreme Court nominees. They should now show deference to Biden’s pick.

While Biden’s nominee will be historic and important it will not impact the ideological balance of the high court. The Supreme Court’s 6-3 conservative majority will remain intact.

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