WASHINGTON — President Biden and his legal team have spent a year preparing for this moment: the chance to fulfill his promise to appoint the first black woman to the Supreme Court at a time of continued racial reckoning for the country.
Justice Stephen G. Breyer’s decision to retire gives Biden his most notable opportunity since taking office to reform the federal judiciary, having already appointed dozens of district and appellate court judges of varying racial, ethnic and ethnic backgrounds. and legal backgrounds.
His pledge also underscores how much black women have struggled to be part of a very small pool of elite judges in the country’s higher federal courts. Speculation on Wednesday centered on a tenuous group of highly qualified black women with elite education and bench experience.
Shortlisted were Ketanji Brown Jackson, a 51-year-old judge on the U.S. Court of Appeals for the District of Columbia Circuit, who graduated from Harvard Law School and served as a clerk for Justice Breyer, and Leondra R. Kruger, a 45-year-old year-old California Supreme Court Justice, Yale Law School graduate and clerk for former Judge John Paul Stevens.
J. Michelle Childs, 55, a little-known South Carolina Federal District Court judge who recently nominated Mr. Biden to an appeals court, is also seen as a potential candidate. One of Congress’ main allies, Representative James E. Clyburn of South Carolina, told Biden during the presidential campaign that he believed she should be appointed, in part because she came from a working-class background, another underrepresented group among federal judges. .
Judge Jackson and Judge Kruger attended Ivy League law schools, unlike Judge Childs, who attended the University of South Carolina. And while there are some differences in the women’s background and experience, they are among a relatively handful of black women who have the sort of credentials normally considered Supreme Court qualifications.
The first black woman to serve as a judge on the Federal Court of Appeals — an experience that is usually a key reference to becoming a judge in modern times — was appointed in 1979 by President Jimmy Carter. By the time Mr. Biden took office, more than 40 years later, only seven had served in such a position.
“If you just look at the raw numbers, it’s a telling and sobering statistic,” said Leslie D. Davis, the director of the National Association of Minority and Women Owned Law Firms. “That makes it clear that we have to do better.”
Mr Biden has said he hopes the diversity he has brought to the high ranks of the federal government will be an important part of his legacy. In addition to his record of judges, his decision to choose Kamala Harris as his running mate during the 2020 campaign led to her becoming the first black woman to serve as vice president.
Half of Biden’s first 16 nominees to federal appeals courts are black women — as many as all previous presidents had nominated combined. That emphasis has attracted the attention of the entire ideological spectrum. For Ms. Davis, the important point of comparison is how few black women were previously employed in the federal bank.
“It’s a story that black women’s voices were not valued,” she said, “that their perspectives were not valued and their voices were not heard.”
But conservatives like National Review legal commentator Ed Whelan have pointed out that the number of black women Mr Biden has nominated is strikingly disproportionate to the pool of black women with law degrees available.
According to a 2021 profile of the legal profession by the American Bar Association, only 4.7 percent of U.S. attorneys are black and 37 percent of attorneys are women. The report didn’t specifically break out black women, but the implication is that about 2 percent of U.S. attorneys are both black and female.
“By Biden’s stated standard of demographic diversity, his first year of judicial appointments has clearly been a remarkable success,” Whelan wrote this month, calling Mr Biden’s record of appointing black women “extraordinary,” while he also took “some pleasure to note” that liberal white males, with only two nominations on appeal so far, were “the big losers”.
Mr Biden made his pledge to nominate a black woman to the Supreme Court during a February 2020 debate just days before he had to confront his Democratic rivals in the South Carolina primaries, where blacks make up a large portion of voters. be part of the party. At the time, his campaign struggled with losses in two of its first presidential games.
“I’m looking forward to getting a black woman on the Supreme Court to make sure we really get everyone represented,” Biden said that evening.
The pledge helped Mr. Biden gain the support of Mr. Clyburn just days before the South Carolina party game.
“I have three daughters,” Mr. Clyburn told Bloomberg. “I think I’d be less than a good father if I didn’t say to the future president, ‘This is a problem that’s simmering in the African American community, that black women think they have an equal right to sit. Supreme Court like any other woman, and up to that point none had been considered.”
Mr. Biden went on to win the South Carolina primary, proving the durability of his support among black voters, and sparking a string of victories a short time later on Super Tuesday.
His Supreme Court selection will take place in a country that still feels the reverberation of the 2020 police murder of George Floyd and the ensuing mass protests against racial justice.
It would also come if the conservative-dominated court this week agreed to hear cases challenging race-conscious college admissions, raising the possibility that affirmative action policies aimed at preserving racial diversity could ban.
The political support of Mr. Biden was especially strong among black women. DailyExpertNews’ exit polling data from the 2020 election showed that while they made up just 8 percent of the electorate, they were Biden’s most skewed supporters: 90 percent of black female voters voted for him.
And in Georgia, Biden’s victory was followed by Democrats winning a pair of crucial second Senate seats that gave the party wafer-thin control of the Senate — and with it the ability to confirm judges without needing any Republican backing.
Several factors played a part in those small victories that turned the state blue, but one of them was that a group of black women organizers — most famously Stacey Abrams, the former candidate for governor who founded a voter registration group called the New Georgia Project — had worked to register hundreds of thousands of new voters and encourage them to come.
For Democrats, maintaining enthusiastic support among black voters, especially black women, could be critical in November’s midterm elections. Democratic activists on Wednesday urged Biden not to go back on his promise.
“There would be little to no reason for President Biden to miss this opportunity,” Aimee Allison, the president of She the People, a liberal advocacy group, said in a statement. “It is and could be a defining moment for his presidency.”
Polls show Democrats are lagging behind in their efforts to maintain control of the House and Senate, and Biden has had a tough first year, in part because Senate filibuster rule means Republicans can take a big chunk off his agenda. blocking, such as approving a social release. bill and an extension of federal voting rights protection.
But since the Senate abolished the filibuster for judges — Democrats did it for lower and appellate judges in 2013, and Republicans did it for Supreme Court justices in 2017 — a party that provides both the White House and Senate with some margin controls, tenured lifelong federal judges, including to fill any vacancies among the 179 federal career seats.
In April, when Biden announced his first three nominees to the appeals court, all three were black women with Ivy League education, including Judge Jackson. Two more of the next 10 appellate judges he has appointed are also black women. And of his six appeals nominees pending in the Senate, three are black women.
Mr. Biden’s decision to use his power to seat scores of black women on the bench — as well as in district court courts and senior positions in the executive branch — is transformative given the many decades in which they rarely wielded power in the legal world. system.
The history of black women judges reflects the larger story of African Americans since the Civil War, according to a 2010 article in the Howard Law Journal by Anna Blackburne-Rigsby, the chief justice of the District of Columbia Court of Appeals.
“Black female judges came to the ‘judicial’ table much later than black men (by over 80 years) and also much later than white women (by nearly 60 years),” she wrote in the article, “Black Women Judges: The Black women’s historical journey to the nation’s highest courts.
New York City did not have its first black female judge until 1939, when Jane Matilda Bolin was appointed to the domestic relations court, Judge Blackburne-Rigsby wrote, adding that then the city’s mayor, Fiorello H. LaGuardia, Mrs. Bolin, he first consulted her husband – a sign of the times and of the limits placed on black women in the legal system.
Judge Blackburne-Rigsby declined to comment on Wednesday. But in her article, she sounded a warning about seeing that demographic’s slow rise to the judiciary as a matter of numbers alone.
“To be both black and female gives an important extra voice to the deliberation process,” she wrote, “but that voice is varied because there is no singular ‘black woman’ perspective.”
Even after the civil rights movement in the 1960s, including the nomination of Thurgood Marshall by President Lyndon B. Johnson as the first black Supreme Court justice in 1967, black women’s access to the levers of the judiciary remained limited.
In 1966, Mr. Johnson had also appointed the first black female federal judge – Constance Baker Motley, whom he placed in New York’s Southern District.
And in the years that followed, Judge Motley was sometimes mentioned as a potential future Supreme Court justice, said Tomiko Brown-Nagin, a Harvard legal historian who this week published a biography of the judge, “Civil Rights Queen.”
But Ms. Brown-Nagin, who is also the dean of the Radcliffe Institute for Advanced Study, said that while Judge Motley was “excellently qualified” for elevation, her political window was closed: As a former civil rights lawyer, she was perceived as a liberal, and from 1969 to 1993, there was no vacancy on the Supreme Court while a Democrat was president.
“This appointment has been a long time coming,” said Ms. Brown-Nagin.