File photo of US Supreme Court. Photograph:( Reuters )
The decision by Justice Stephen G. Breyer to retire will give Biden his most high-profile opportunity since taking office to reshape the federal judiciary, having already nominated dozens of district and appeals court judges from a range of racial, ethnic and legal backgrounds
President Joe Biden and his legal team have spent a year preparing for this moment: the chance to make good on his pledge to name the first Black woman to the Supreme Court at a time of continuing racial reckoning for the country.
The decision by Justice Stephen G. Breyer to retire will give Biden his most high-profile opportunity since taking office to reshape the federal judiciary, having already nominated dozens of district and appeals court judges from a range of racial, ethnic and legal backgrounds.
His promise also underscores how much Black women have struggled to become part of a very small pool of elite judges in the nation’s higher federal courts. Speculation on Wednesday focused on a rarefied group of well-credentialed Black women who have elite educations and experience on the bench.
The short list included 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 clerked for Breyer, and Leondra R. Kruger, a 45-year-old justice on the California Supreme Court who graduated from Yale Law School and clerked for former Justice John Paul Stevens.
J. Michelle Childs, 55, a little-known U.S. District Court judge in South Carolina whom Biden recently nominated for an appeals court, is also seen as a potential contender. One of Biden’s top congressional allies, Rep. 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 blue-collar background, another underrepresented group among federal judges.
Jackson and Kruger attended Ivy League law schools, unlike Childs, who attended the University of South Carolina. And while there are some differences in the women’s backgrounds and experience, they are united in being among a relative handful of Black women who have the kind of credentials normally considered qualifications for the Supreme Court.
The first Black woman to serve as a federal appeals court judge — an experience that in the modern era is usually a key credential in becoming a justice — was appointed by President Gerald R. Ford in 1975. By the time Biden took office more than 40 years later, only seven more had served in such a position.
“If you just look at the raw numbers, it’s a telling and a sobering statistic,” said Leslie D. Davis, the chief executive of the National Association of Minority and Women Owned Law Firms. “That makes it clear that we must do better.”
Biden has said he hopes the diversity he has brought to the high ranks of the federal government will be a centerpiece of his legacy. In addition to his record on judgeships, his decision to pick 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 for federal appeals courts have been Black women — as many as all previous presidents combined had appointed. That emphasis has attracted scrutiny from across the ideological spectrum. For Davis, the important point of comparison is how few Black women had previously been appointed to the federal bench.
“It’s a story that Black women’s voices have not been appreciated,” she said, “that their perspectives have not been valued, and their voices have not been heard.”
But conservatives like the National Review legal commentator Ed Whelan have pointed out that the number of Black women Biden has nominated is strikingly disproportionate to the available pool of Black women with law degrees.
According to a 2021 profile of the legal profession by the American Bar Association, just 4.7% of American lawyers are Black and 37% of lawyers are female. The report did not break out Black women in particular, but the implication is that roughly 2% of American lawyers are both Black and female.
“By Biden’s declared standard of demographic diversity, his first year of judicial nominations has clearly been a remarkable success,” Whelan wrote this month, calling Biden’s record on appointing Black women “extraordinary” while also taking “some delight in noting” that liberal white males, with just two appellate nomination slots so far, were “the big losers.”
Biden made his promise to name a Black woman to the Supreme Court at a debate in February 2020, just days before facing his Democratic rivals in the South Carolina primary, where Black people make up a large portion of the party’s voters. At the time, his campaign was struggling amid losses in two of the early presidential contests.
“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,” Biden said that night.
The promise helped Biden secure the support of Clyburn just days before the party’s contest in South Carolina.
“I have three daughters,” Clyburn told Bloomberg. “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.”
Biden went on to win the South Carolina primary, proving the durability of his support among Black voters and setting in motion a string of victories on Super Tuesday a short time later.
Biden's Supreme Court selection will take place in a country still feeling the reverberations of the police killing of George Floyd in 2020 and subsequent mass protests over racial justice.
It also would come as the conservative-dominated court agreed this week to hear cases challenging race-conscious college admissions programs, raising the possibility that it may ban affirmative action policies aimed at maintaining racial diversity.
Biden’s political support has been especially strong among Black women. New York Times exit polling data from the 2020 election showed that while they made up just 8% of the electorate, they were Biden’s most lopsided supporters: 90% of Black female voters cast their ballots for him.
And in Georgia, Biden’s win was followed by Democrats sweeping a pair of crucial runoff elections for Senate seats that gave the party razor-thin control of the Senate — and with it the ability to confirm judges without needing any Republican support.
Several factors went into those narrow wins that flipped the state blue, but one was that a group of Black female organizers — most famously Stacey Abrams, the former candidate for governor who founded a voter registration group called the New Georgia Project — had been working to register hundreds of thousands new voters and encourage them to turn out.
For Democrats, maintaining enthusiastic support among Black voters, and especially Black women, may be critical in November’s midterm elections. Democratic activists urged Biden on Wednesday not to back down from his promise.
“There would be little to no rationale 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 trailing in their efforts to keep control of the House and the Senate, and Biden has had a rocky first year, in part because the Senate filibuster rule means Republicans can block much of his agenda, like passage of a social spending bill and an expansion of federal protections for voting rights.
But since the Senate abolished the filibuster for judges — Democrats did so for lower and appellate court judges in 2013, and Republicans did so for Supreme Court justices in 2017 — a party that controls both the White House and the Senate by any margin can appoint life-tenured federal judges, including to fill any vacancies among the 179 federal appellate seats.
In April, when Biden announced his first three appeals court nominees, all three were Black women with Ivy League educations, including Jackson. Two more of the next 10 appellate judges he appointed are also Black women. And of his six appellate nominees still pending before the Senate, three are Black women.
Biden’s decision to use his power to place numerous Black women on the bench — as well as in district court judgeships and high-profile roles in the executive branch — is transformative considering the many decades during which they have rarely exercised power in the legal system.
The history of Black female judges mirrors the larger story of African Americans since the Civil War, according to a 2010 article in the Howard Law Journal by Anna Blackburne-Rigsby, who is the chief judge of the District of Columbia Court of Appeals.
“Black women judges came to the ‘judicial’ table much later than Black men (by more than 80 years) and also much later than white women (by almost 60 years),” she wrote in the article, “Black Women Judges: The Historical Journey of Black Women 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, Blackburne-Rigsby wrote, adding that when the city’s mayor, Fiorello H. LaGuardia, appointed Bolin, he first consulted her husband — a sign of the times and of the limits placed on Black women in the court system.
Blackburne-Rigsby declined to comment Wednesday. But in her article, she sounded a note of caution about viewing that demographic’s slow rise to judicial power as a matter of numbers alone.
“Being both Black and female brings an important additional voice to the deliberative 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, which included President Lyndon B. Johnson’s appointment of Thurgood Marshall as the first Black Supreme Court justice in 1967, Black women’s access to the levers of judicial power remained limited.
In 1966, Johnson had also appointed the first Black female federal judge — Constance Baker Motley, whom he placed in the Southern District of New York.
And in the years that followed, Motley was sometimes mentioned as a potential future Supreme Court justice, said Tomiko Brown-Nagin, a Harvard legal historian who published a biography of the judge this week, “Civil Rights Queen.”
But Brown-Nagin, who is also the dean of the Radcliffe Institute for Advanced Study, said that while Motley was “eminently qualified” for elevation, her political window closed: As a former civil rights lawyer, she was seen as a liberal, and from 1969 until 1993, there was no Supreme Court vacancy while a Democrat was president.
“This appointment has been a long time coming,” Brown-Nagin said.