During his presidential campaign, Biden promised to appoint a Black woman to the Supreme Court if a seat became vacant. The nomination of the first African American woman in to the U.S. Supreme Court should strengthen support for Biden from Black voters and increase their motivation to vote in this year’s congressional midterm elections.
After a series of defeats that made things worse for him, Joe Biden finally got some good news: 83-year-old liberal Supreme Court Justice Stephen Breyer is retiring. This will allow the president to replace him with a much younger candidate who will ensure the stability of the liberal bloc. During his presidential campaign, Biden promised to appoint a Black woman to the Supreme Court if a seat became vacant, and he has proved that he keeps his word. The first nomination of an African American woman to the court — announced on Thursday — should bolster Black voter support for Biden and increase Black motivation to vote in this year’s congressional midterm elections.
The Conservatives Have a Majority
There are currently six conservative justice and three liberal justices on the nine-member Supreme Court; their ideological profile, in simple terms, is based on the opinions they have issued so far. The justices that form the conservative majority were nominated by Republican presidents; the liberal minority were appointed by Democrats. Supreme Court justices serve for life.
The appointment of a new justice would not change the power balance on this highest judicial body, which serves as the guardian of the law and the Constitution. Yet there was a danger that the conservative advantage could have grown should Breyer have become ill or died. Moreover, since Supreme Court justices are confirmed by the Senate and people expect that the Republican Party will regain control of Senate in the November midterms, it is unlikely Biden could have secured confirmation of his nominee if a vacancy occurred next year. GOP leaders made it clear they would ruthlessly block all of Biden’s nominees. People thus discreetly urged Breyer to step down before it was too late; he seemed to be offended and stressed he would not be influenced by politics, but eventually agreed to retire.
7 Black Candidates
There are currently 50 Republicans and 50 Democrats in the Senate, but the deciding vote belongs to Vice President Kamala Harris, giving the Democrats a slim majority. It is anticipated that every Democratic senator and possibly a few Republicans will vote to confirm Biden’s nominee. Breyer will remain in office until October, but the Senate may start the confirmation process after he announces his resignation.* That process usually takes two to three months, but in the last Supreme Court nomination of Amy Coney Barrett, nominated by Donald Trump following Ruth Bader Ginsburg’s death in September 2020, Republicans speeded things up and shortened the process to one month to get their confirmation through before the November presidential election.
Seven Black women are in the running for Breyer’s seat. Ketanji Brown Jackson, 51, a graduate of Harvard Law School who serves on the U.S. Court of Appeals for the D.C. Circuit, considered the most important federal appellate court in the country, is seen as a definite favorite. She has an added advantage in that she was already screened prior to her nomination to the appellate court last year. California Supreme Court Justice Leondra Kruger and South Carolina District Court Judge J. Michelle Childs are also favored as nominees.
Childs has the support of Black Rep. James Clyburn of South Carolina, the third-ranking Democrat in the House of Representatives. Clyburn’s endorsement of Biden during the 2020 Democratic presidential primary is believed to have secured Biden the presidential nomination after he mobilized African Americans to vote. Clyburn himself says that African Americans based their support for Biden on his promise to nominate an African American woman to the Supreme Court.
The Court Is To Be More ‘Like America’
The president’s announcement about filling Breyer’s seat means that the Supreme Court, which has been filled in the past exclusively by white men, will be, as Democratic leaders emphasize, more “like America,” which has grown increasingly more multicultural, multireligious and multiracial. The first breakthrough in dismantling the white-dominated Supreme Court was the nomination of Black lawyer Thurgood Marshall in 1967 by Lyndon B. Johnson. Male dominance ended with Ronald Reagan’s 1983 nomination of Sandra Day O′Connor.
If Brown Jackson or another Black candidate fills Breyer’s seat, there will be five men on the Supreme Court: Chief Justice John Roberts, Justices Samuel Alito, Neil Gorsuch, Clarence Thomas and Brett Kavanaugh; and four women, Justices Sonia Sotomayor, Elena Kagan, Coney Barrett and Biden’s nominee. There will therefore be six white justices of European descent, two African Americans (Thomas plus Biden’s nominee) and one Latina (Sotomayor).
The War over the Supreme Court
Meanwhile, the Republican right is asserting that Biden is restricting his selection of candidates to Black women. Popular Fox News commentator Tucker Carlson accused the president of apparently ignoring other selection criteria, such as legal qualifications or which law school was attended. Carlson claims the president is being solely guided by identity politics, something he says is exacerbating the ethno-racial divide in the U.S. Other conservative media commentators have even accused Biden of “racial discrimination” by favoring African American women over white candidates.
At best, the Republicans criticize the president and his team for “politicizing” the nomination to the Supreme Court by allegedly supporting candidates who guarantee they will rule along Democratic liberal-leftist lines. Of course, they fail to mention the actions they took which deepened Americans’ belief that the Supreme Court is increasingly becoming a tool in the hands of both sides of the ideological and cultural divide, including the episode in which the GOP blocked Barack Obama’s 2016 nomination of Merrick Garland following the death of conservative Supreme Court Justice Antonin Scala under the pretext that given the upcoming presidential election, the vacancy needed to be filled by the new president.
This same president — Trump — and his party didn’t hesitate to fill Justice Ginsburg’s seat with a new conservative justice (Coney Barrett) a month before the 2020 presidential election. Given the state of extreme polarization in the U.S., the “politicization” of the Supreme Court — and the consequent decline in its prestige — has been a fact of life for a long time.
*Editor’s Note: Supreme Court Justice Stephen Breyer formally announced his retirement from the court on Jan. 27.