It's About Time

Biden's commitment to nominating a Black woman as the next SCOTUS Justice will widen the perspective and deepen the lived experience and compassion influencing the highest court's decisions

Ketanji Brown Jackson, US Circuit Judge for the District of Columbia, is one of the leading potential nominees for the Supreme Court. (Photo by Tom Williams-Pool/Getty Images)

The predictably hostile response of some Republicans to President Biden’s promise to choose a Black woman to replace retiring Supreme Court Justice Stephen Breyer is a perfect encapsulation of white privilege and its assumption that the Court’s history isn’t a centuries-old display of bias.

From the first meeting of the Supreme Court in the Royal Exchange in New York City on February 2, 1790, it took 177 years before the first Black man joined the highest court (Thurgood Marshall appointed by Lyndon Johnson in 1967), 191 years before the first woman joined the Court (Sandra Day O’Connor appointed by Ronald Reagan in 1981), and 219 years before including the first woman of color (Sonia Sotomayor appointed by Barack Obama in 2009).

Now, 232 years later, the negative noise surrounding Biden’s intention would have you believe that he has tossed aside the responsibility to nominate the most qualified person to join the bench. As if in over two centuries the most qualified person has never been a Black woman. As if in 2022, the most qualified person wouldn’t be a Black woman.

And as if—when the Court is facing such major issues in 2022 as abortion, gun rights and religious liberty—the lived experience of a new justice is not a critical aspect of her “qualifications” to provide the necessary insight and compassion to fairly determine justice in America’s complex, multiracial society.

On Friday, Mississippi Republican Sen. Roger Wicker served up his preemptive strike on a local radio station, referring to Biden’s plan as affirmative action “discrimination” and predicting not a single Republican senator will back whoever is nominated. “The irony,” Wicker said, “is that the Supreme Court is at the very time hearing cases about this sort of affirmative racial discrimination while adding someone who is the beneficiary of this sort of quota.”

And then there was North Carolina Sen. Thom Tillis, warning Biden against “catering to the far-left by selecting a nominee who will legislate from the bench and push their preferred liberal policy objectives.” This at a time when the court tilts 6-3 conservative, has already shown its willingness to toss aside precedent and overturn Roe v. Wade—and shortly after the country watched as the previous White House occupant picked and pushed through three conservative ideologues.

Did you know that there is no constitutional stipulation that a justice to the Supreme Court needs to have a law degree? Or for that matter, be of any particular age, possess any particular job experience or even be a native born citizen?

That doesn’t mean, of course, that reasonable expectations didn’t evolve in an effort to ensure the Court is comprised of capable justices based on intellect, educational and professional experience, the ability to think and write logically, and less measurable but necessary qualities such as personal integrity, judicial temperament and fair-mindedness. Yet we don’t have to delve back many years to find exceptions to these expectations, including an angry nominee-turned-Justice with an unusually strong affinity for beer and a litany of publicly stated complaints about his abusive private behavior.

In a country of 332 million, is it not way past time for a more inclusive Supreme Court? As The Nation’s justice correspondent Elie Mystal succinctly puts it, “White guys have accounted for 108 of the 115 Supreme Court justices in history. I think it’s time we opened up the search parameters.” (We’ll see if Biden’s choice extends beyond graduates of Yale and Harvard, which currently include eight of the nine justices.)

In the coming months, once confirmation hearings begin to question Biden’s selection, we can only hope for a more respectful process than what Thurgood Marshall endured in the summer of ’67. For two decades, he had led the NAACP’s Legal Defense Fund, including the fight against racial segregation that concluded with the achievement of Brown v. Board of Education. This civil rights icon was questioned by Mississippi Sen. James Eastland as to whether he was “prejudiced against the white people of the South,” then called a “stupid guy” by South Carolina segregationist Strom Thurmond. Nonetheless, Marshall was ultimately confirmed by the Senate 69 to 11.

As Matt Ford noted in The Atlantic on the 50th anniversary of Justice Marshall’s confirmation, the first Black justice did not hide his doubts about the Constitution he served. In 1987, Marshall described the document “defective from the start,” referring to the authors who crafted it. He explained that it took “several amendments, a civil war, and momentous social transformation” before “We the People” expanded beyond white men to include all Americans.

The expansion of the US Supreme Court to include one Black woman will not resolve the Court’s current trajectory. But it does offer a meaningful opportunity to enhance the breadth of knowledge and experience that must be infused in this time-worn institution that promises to serve justice.

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