In its 233-year existence, there’s never been a Black woman on the Supreme Court. But thanks to the announcement of the retirement of 83-year-old Justice Stephen Breyer, President Biden has the opportunity to make history — and keep a campaign promise to put the first Black woman on the bench.
Biden officially affirmed his commitment on Thursday afternoon. “The person I will nominate will be someone of extraordinary qualifications, character, experience and integrity,” he said. “And that person will be the first Black woman ever nominated to the United States Supreme Court.”
An added bonus to history being made: It looks like mainstream America’s about to find out that there are more Black women with legal backgrounds than Michelle Obama, Stacey Abrams, and Vice President Kamala Harris. The part that will work our nerves from now until the future justice is sworn in? The conversation over whether there are any qualified Black women out there.
NBC News legal analyst and former New York City mayoral candidate Maya Wiley set the record straight on Twitter, writing “Here’s what ‘qualified’ looks like” and sharing an image of eight Black women who she knew off the top of her head could fill the position.
The two widely-presumed front-runners are as qualified as they come. Leondra R. Kruger, a 45-year-old justice on the California Supreme Court and Miami native Ketanji Brown Jackson, a 51-year-old judge on the U.S. Court of Appeals for the District of Columbia Circuit have the same Ivy League and work experience bonafides that most other nominees and confirmed justices come with.
Kruger’s a graduate of Harvard College and Yale Law School and previously clerked for former Justice John Paul Stevens. Brown Jackson attended Harvard College and Harvard Law School and clerked for three federal judges, including Justice Breyer.
Despite these impressive credentials, the commitment to nominate a Black woman is being talked about in some circles as meaning that the nominee won’t be as qualified — that she’ll be a “diversity hire” whose presence on the court will diminish its prestige and legal prowess. And the insinuation seems to be coming from more than the typical conservative political circles.
An op-ed published on Wednesday by the Washington Post editorial board started off telling readers that Biden “should pick the best candidate for the job” and emphasized the need for an “impartial” nominee.
The editorial board went on to note that diversity is a “reasonable consideration” and a Black woman “would be a welcome first, and there are well-qualified Black women on the federal bench whom he could promote. But the president also should not feel restricted to the pool of candidates serving on appeals courts, from which every sitting justice but one hails. Some of the nation’s best justices traveled different paths to the court.”
Why didn’t the Post’s editorial board write about how there are dozens upon dozens of smart, impartial, highly qualified Black women who could sit on the bench alongside Justices Amy Coney Barrett and Brett Kavanaugh — and Biden’s only problem will be choosing which one?
As writer Michael Harriot wrote on Twitter, “Well, now that we’re talking about nominating Black women, allow me to introduce a new word: ‘BUT’”.
Added Harriot, “But now qualifications shouldn’t matter that much. But now that Black women are just as qualified as the white men, maybe we should consider some outside-the-box nominations.”
NYU Law School professor Deborah Archer broke it down even further.
“It is exhausting to see people decrying Biden picking ‘a less qualified’ or ‘unqualified’ Black woman for SCOTUS, without even seeing who the nominee is,” tweeted Archer. “You are essentially saying that you think there is literally no Black woman in this country qualified to sit on the Court.”
Journalist, “1619 Project” creator, and Howard University professor Nikole Hannah-Jones tweeted that critics of Biden’s commitment are ignoring “the fact they almost every other SCOTUS justice since we had a Supreme Court was a white man, and then pretending that had nothing to do with identity and not qualifications.”
Biden first made the promise during the Democratic candidate debate in South Carolina in February 2020. “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,” he said.
The pledge, which came right before Super Tuesday and the South Carolina primary, was widely seen as key to earning the endorsement of South Carolina Democratic Congressman James Clyburn, who told Bloomberg last September that he’d pressed Biden on the issue prior to the debate.
“I have three daughters,” Clyburn said. “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.”
In an appearance on Thursday afternoon on Meet the Press, Wiley expressed what many folks are feeling after Biden’s announcement that he will nominate a Black woman.
“It is hard to overstate just how important and powerful and inspiring a moment this is,” Wiley said. She pointed out that only 3% of Black women are federal judges and that women of color as a whole “have been overlooked” and don’t “fit a box.”
We’ll take a breath and bask in the inspiration of the moment. Biden said he’ll share his nominee by the end of February — and when he does, we can expect that her legal record, what she did on the playground in kindergarten, and every aspect of her family, neighborhood, and the lives random acquaintances will be picked apart. But one thing’s for sure, she’ll undoubtedly be qualified.