When President Joe Biden announced last month that he will abide by his campaign promise to nominate a Black woman to the Supreme Court, it sparked a flurry of criticism, particularly among white male Republicans.
Texas Sen. Ted Cruz said that specifying a Black woman for the role is “offensive.” Mississippi Sen. Roger Wicker charged that the nominee would be a “beneficiary” of affirmative action. Louisiana Sen. John Kennedy worried the nominee wouldn’t be able to distinguish “a law book from a J. Crew catalog” and would try to rewrite the Constitution to “advance a woke agenda,” according to Politico.
The comments suggested that by appointing the Supreme Court’s first Black woman justice, Biden inevitably would be excluding more qualified candidates.
A recent survey shows that public perception of candidates’ readiness for the Supreme Court varies by race. When respondents to a Yahoo! News Survey were given a list of qualifications for potential Black female Supreme Court nominees, white people were less likely to view them as qualified than Black people – by as much as 15 percentage points.
The gap shrunk to 2 percentage points for Merrick Garland, whose Supreme Court nomination by President Barack Obama was blocked by Senate Republicans in 2016. And the gap reversed for President Donald Trump’s Supreme Court appointment of Amy Coney Barrett: White respondents were more likely than Black respondents to view her as qualified, by 4 percentage points.
Cook County State’s Attorney Kim Foxx, the first Black woman elected to her position, noted that when Trump announced his plans to nominate a woman to the Supreme Court, he didn’t draw the criticism that Biden has.
“There was not a reaction like what we are seeing right now of ‘how dare you limit the pool?’” Foxx said. “There was not a question of whether a woman that he could choose would have the ability.”
The disproportionate questions that Black women receive about their professional qualifications are an example of “misogynoir,” a term dubbed by scholar Moya Bailey in 2010. It defines the unique form of prejudice — a combination of misogyny and racism — aimed at Black women.
When Black women excel in roles traditionally filled by white men, particularly a lifetime position like that on the Supreme Court, it can be seen as a threat to the status quo. Foxx and other Black women at the top of the legal field say they have received these kinds of attacks from internet trolls and critiques from public officials, fielded through mail, emails and voicemails — sometimes anonymously.
The Supreme Court has not reflected the demographics of the legal field in the United States. There are more than 1.3 million practicing attorneys in the country and 37% are women, according to the American Bar Association’s 2021 National Lawyer Population Survey. In the 25 states that reported race and ethnicity of active attorneys, 5% are Black — a statistic that has been consistent since 2011.
A recent survey by the Minority Corporate Counsel Association of 225 U.S. law firms found slightly over 2% of attorneys were Black women.
During Kristen Clarke’s confirmation hearing last year to lead the Justice Department’s Civil Rights Division, some Republicans grilled her about a satirical article she co-authored as a Harvard University student comparing the genetics of Blacks and whites. They also questioned her decision as the leader of Harvard’s Black Students’ Association to invite an antisemitic author for a speaking engagement, a decision she apologized for 25 years ago. Those lawmakers didn’t ask Clarke during the hearing about her career or professional qualifications to lead the division.
But in the more than 230-year history of the Supreme Court, there have been only two Black people, both of them men: Thurgood Marshall and Clarence Thomas. And of the 115 justices who have served on the Court, only five of them have been women – none of them Black. (Justice Sonia Sotomayor, appointed by Obama, is the first Latina to serve on the panel.)
Biden has nominated more people of color and women to executive and judicial positions than any other president in their first year of office, according to The Brookings Institute. Of the 37 U.S. attorneys Biden has nominated, more than half are Black and seven are Black women. Fifteen of the nominees were the first of their demographic to serve in their districts, according to Wyn Hornbuckle, deputy director for the Office of Public Affairs with the Justice Department.
Biden also nominated and the Senate has confirmed more women of color as federal and circuit court judges than any other president in their first year. Of Biden’s 42 confirmed jurists by the end of January, 29 identify as Black, Asian, Native American, Hispanic, or multiracial.
U.S. Attorney Rachael Rollins of Massachusetts, who became the first Black woman to fill that role last month, said she has received an uptick of racist and sexist messages as well as death threats following a contentious confirmation process. Rollins said she has reported the attacks to local police and the U.S. Marshals Service, which protects over 30,000 federal prosecutors, judges and court officials.
“It’s a 100% guarantee that whoever the nominee is, is going to be attacked. She will have her credibility, her intelligence, her abilities questioned,” Foxx said. “The strategies she has had to maneuver to get to this point, she will need to continue to employ. … My suspicion is that this isn’t new to her.”
Several Black women’s names have circulated as potential Biden picks for the Supreme Court. The Biden administration has not publicly confirmed who is on the shortlist, though he told NBC News last week that he has evaluated “about four” potential candidates.
Ketanji Brown Jackson, whom Biden appointed last year to the U.S. Court of Appeals for the District of Columbia Circuit, received support from nearly two dozen Supreme Court law clerks prior to her confirmation, according to her written responses to the Senate Judiciary Committee. She has served as a federal public defender and a district judge, and her rulings have included cases on qualified immunity for law enforcement.
J. Michelle Childs, a federal defense attorney, received bipartisan praise during her 2010 confirmation hearing for the U.S. District Court for the District of South Carolina. In that role, she ruled in 2020 to eliminate a state law that required absentee ballots to be signed by a witness, calling it a health risk in the midst of the coronavirus pandemic, according to the Associated Press. White House spokesman Andrew Bates confirmed to The Washington Post that Biden is considering her as a Supreme Court nominee.
California Supreme Court Justice Leondra Krugar also has been rumored as a possible nominee, along with some attorneys who do not have experience on the bench, including Sherrilyn Ifill, president of the NAACP Legal Defense and Education Fund, and New York University School of Law professor Melissa Murray. Historically, many Supreme Court justices have not previously served as a judge, according to the Wall Street Journal, including Justice Elena Kagen, an Obama nominee.
While the Supreme Court will remain conservative regardless of Biden’s appointment, social justice advocates hope that her voice on issues that matter to civil rights for people of color will be heard in dissents.
Tiffany Jeffers, an associate professor of law at the Georgetown University Law Center, says that having a Black woman on the Supreme Court would “be a really, really powerful” perspective to bring to the panel.
“It’s important that a Black woman is on the court because that’s a particular experience in this country that has been not spoken to in the interpretation of the Constitution and implementation of our governing laws,” Jeffers said.
But having a Black woman on the court is not a guarantee of more diversity of perspectives on the bench, Foxx said. Biden’s nominee has to be fully vetted beyond her resume to avoid someone who is “paper qualified” for the role, but holds views that don’t align with most people of color. As an example, she pointed to Justice Thomas, who has consistently voted against the interests of communities of color on issues like affirmative action and voting rights.
“It is not enough just to be a Black woman. There’s the legal qualifications and then there’s the value qualifications that are required in this moment of racial reckoning,” Foxx said. “Where we are right now, we need to make sure that ideological values match the legal credentials, because this person is going to be sitting there for 10, 20, 30 years. We need that impact to be long lasting.”