My primary beef with President Biden’s pledge to nominate a Black woman to the U.S. Supreme Court (SCOTUS) is that I wish a conservative president had done it first. Had President Trump, for example, filled one of his three vacant Court seats with a Black woman – one whose approach to the U.S. Constitution was similar to that of Justice Clarence Thomas and the other originalists – conservatives would have praised the decision.
And that selection would have added one more reason for many minorities to rethink their increasingly tenuous support for the Democratic Party.
But now it’s Biden’s turn to nominate a new associate justice, and he has said he will choose a Black woman, fulfilling a pledge he made in return for House Majority Whip Jim Clyburn’s (D-S.C.) support in the 2020 South Carolina presidential primary — support that rescued Biden’s struggling presidential campaign.
Several Republicans have criticized Biden’s decision, even implying it’s a type of affirmative action or invoking a quota system. Sen. Lindsey Graham (R-S.C.) has rejected such accusations. I agree.
First, some argue that it’s a bad idea for a president (or a presidential candidate) to appear to be engaging in a quid-pro-quo — i.e., making a firm promise to do a political favor in return for political or financial support.
Except that’s the way politics has worked forever. Political candidates often make promises (some legal, others perhaps not) behind closed doors. So, the public may never even know about an agreement. But in this case, Clyburn’s ask was made publicly and didn’t specifically benefit himself.
Second, concerns have been raised that Biden shouldn’t be limiting his choices. But as Michael Tesler in FiveThirtyEight points out, several previous Republican presidents have done exactly that.
President Reagan promised to nominate a woman during his 1980 presidential campaign, and he did when the opportunity arose. Justice Sandra Day O’Connor became the first woman on the Court.
President George H.W. Bush nominated Clarence Thomas when the civil rights icon Justice Thurgood Marshall retired. There was a lot of pressure on Bush to keep at least one person of color on the Court, and that’s what he did.
And Trump promised to nominate a woman to fill Justice Ruth Bader Ginsberg’s slot after her death — in essence, ensuring a female jurist, Justice Amy Coney Barrett, retained that seat.
Third, some critics imply that there aren’t enough well-qualified potential Black female candidates for the job.
It’s true that there is a relatively small number of Black women serving as federal judges or on federal appellate courts.
The Pew Research Center writes, “Historically, women have accounted for a relatively small share of all Black federal judges. Fewer than a third of all Black judges ever appointed (29%, or 70 of 239) have been women.” Pew goes on to say most of them were federal judges. “Only 13 have served at the appellate court level — that is, the powerful regional courts that are one step below the Supreme Court.”
But SCOTUS nominees aren’t required to come from the federal bench. There are state Supreme Courts to draw from. In addition, Justice Elena Kagan never served as a judge, federal or otherwise, until she was admitted to the Supreme Court.
She clerked for one appellate judge and one Supreme Court justice; she was the U.S. solicitor general for a time, and she was dean of Harvard Law School until President Obama nominated her to the Court.
But the problem facing Biden is that the left is pushing not just for a Black woman but for a progressive Black woman. But it’s not entirely clear Biden can muster 51 Senate votes if the nominee is too far to the left.
That opens up an opportunity for Republicans to provide some input in an effort to get a more centrist or pragmatic nominee — and that’s what Sen. Graham is doing. Graham supports the nomination of a Black woman, saying, “Put me in the camp of making sure the court and other institutions look like America.” Exactly.
Conservatives should be supporting the nomination of a Black woman to the Supreme Court and holding any potential criticisms until they see whom Biden names.
Merrill Matthews is a resident scholar with the Institute for Policy Innovation in Dallas, Texas. Follow him on Twitter @MerrillMatthews.