Biden Expected to Nominate a Black Woman to the Supreme Court

The Four Percent


Follow live coverage on Stephen Breyer’s retirement from the Supreme Court.

WASHINGTON — President 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 Mr. 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 Justice 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 Federal District Court judge in South Carolina whom Mr. Biden recently nominated for an appeals court, is also seen as a potential contender. One of Mr. Biden’s top congressional allies, Representative James E. Clyburn of South Carolina, told Mr. 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.

Judge Jackson and Justice 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 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 Jimmy Carter in 1979. By the time Mr. 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.”

Mr. 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.

Mr. 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 percent of the electorate, they were Mr. Biden’s most lopsided supporters: 90 percent of Black female voters cast their ballots for him.

And in Georgia, Mr. 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 Mr. 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 Mr. 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 Mr. Biden announced his first three appeals court nominees, all three were Black women with Ivy League educations, including Judge 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.

Mr. 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, Judge Blackburne-Rigsby wrote, adding that when the city’s mayor, Fiorello H. LaGuardia, appointed Ms. Bolin, he first consulted her husband — a sign of the times and of the limits placed on Black women in the court system.

Judge Blackburne-Rigsby declined to comment on 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.”


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