Follow the 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 fulfill his promise to appoint the first black woman to the Supreme Court at a time of continued racial reckoning for the country.
Judge Stephen G. Breyer’s decision to retire will give Mr Biden his most high-profile opportunity since he took office to reshape the federal judiciary, having already nominated dozens of district and appellate judges from a range of racial, ethnic and legal backgrounds. backgrounds.
His promise also underscores how much black women have struggled to become part of a very small pool of elite judges in the country’s higher federal courts. The speculation on Wednesday focused on a rare group of well-known black women who have elite educations and experience on the bench.
The short list included Ketanji Brown Jackson, a 51-year-old judge at the U.S. District Court of Columbia Circuit, who graduated from Harvard Law School and is a clerk for Justice Breyer, and Leondra R. Kruger, a 45-year-old judge at California Supreme Court, who graduated from Yale Law School and was a proxy for former Judge John Paul Stevens.
J. Michelle Childs, 55, a little-known Federal District Court judge in South Carolina, whom Mr. Biden, recently nominated for an appellate court, is also seen as a potential candidate. One of Mr. Biden’s top congressman, South Carolina Representative James E. Clyburn, told Mr. Bitten during the presidential campaign that he thought she should be appointed, in part because she came from a blue-collar background, another under-represented group among federal judges.
Judge Jackson and Justice Kruger attended Ivy League law schools, as opposed to Judge Childs, who attended the University of South Carolina. And while there are some differences in the background and experience of women, they are united in being among a relatively handful of black women who have the kind of credentials that are usually considered to be 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 piece of evidence to become a justice – was appointed by President Jimmy Carter in 1979. When Mr. Biden took office, he was more than 40 years old. later only seven more had sat in such a position.
“If you just look at the raw numbers, it’s a telling and a sober statistic,” said Leslie D. Davis, executive director of the National Association of Minority and Women Owned Law Firms. – It makes it clear that we need to do better.
Mr. Biden has said he hopes the diversity he has brought to the high ranks of the federal government will be a key element of his legacy. In addition to his record of judge positions, his decision to elect Kamala Harris as her candidate during the 2020 campaign led her to become the first black woman to serve as vice president.
Half of Mr. Biden’s first 16 nominees for federal appeals courts have been black women – as many as all previous presidents combined had nominated. This weight has attracted scrutiny from the whole ideological spectrum. For Mrs. 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 valued,” she said, “that their perspectives have not been valued and their voices have not been heard.”
But conservatives like National Review legal commentator Ed Whelan have pointed out that the number of black women that Mr. Biden has nominated, is strikingly out of proportion to the available pool of black women with legal degrees.
According to a 2021 profile of the legal profession from the American Bar Association, only 4.7 percent of American attorneys are black, and 37 percent of attorneys are women. The report does not break out black women in particular, but the implication is that about 2 percent of U.S. lawyers are both black and women.
“By Biden’s stated standard of demographic diversity, his first year with judge nominations has clearly been a remarkable success,” wrote Mr. Whelan this month and called Mr. Biden’s record of naming black women “extraordinary”, while also having “some joy in noticing” “that liberal white men, with only two appeals so far, were” the big losers “.
Mr. Biden made his promise to nominate a black woman to the Supreme Court in a debate in February 2020, a few days before facing his Democratic rivals in the South Carolina primary, where blacks 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 look forward to ensuring that there is a black woman in the Supreme Court to ensure that we actually get everyone represented,” Mr. Bite that night.
The promise helped Mr. Biden to secure support from Mr. Clyburn a few days before the party’s competition in South Carolina.
“I have three daughters,” said Mr. Clyburn to Bloomberg. “I think I would be less than a good father if I did not tell the incoming president that this is an issue that is simmering in African American society, as black women think they are just as right. to sit on. The Supreme Court like all other women, and until then no one had been taken into account. “
Mr. Biden went on to win the primary election in South Carolina, proving the durability of his support among black voters and set off a series of victories at Super Tuesday shortly thereafter.
His Supreme Court selection will take place in a country that still feels the echo of police killings of George Floyd in 2020 and subsequent mass protests over racial justice.
It would also come when the Conservative-dominated court this week agreed to deal with cases challenging race-conscious admissions programs at universities, raising the possibility that it could ban positive action treatment policies aimed at maintaining racial diversity.
Sir. The bid’s political support has been particularly strong among black women. The New York Times’ exit poll data from the 2020 election showed that even though they made up only 8 percent of voters, they were Mr. Bid’s most skewed supporters: 90 percent of black female voters cast their ballots for him.
And in Georgia, Mr Biden’s victory was followed by Democrats sweeping a couple of decisive by-elections to the Senate seats, giving the party a stingy control over the Senate – and thus the ability to confirm judges without the need for any Republican support.
Several factors went into the narrow victories that turned 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 worked to register hundreds of thousands of new voters and encourage them to turn up.
For Democrats, maintaining enthusiastic support among black voters, and especially black women, could be crucial in the midterm elections in November. Democratic activists on Wednesday urged Biden not to back down from his promise.
“There would be little or no reason for President Biden to miss out on this opportunity,” Aimee Allison, chairwoman of She the People, a liberal advocacy group, said in a statement. “It is and can be a crucial moment for his presidency.”
Opinion polls show Democrats are lagging behind in their efforts to control Parliament and the Senate, and Mr Biden has had a rock-solid first year, in part because the Senate’s filibuster rule means Republicans can block much of his agenda, which for example. bills and an extension of federal suffrage protection.
But since the Senate abolished filibusters for judges – Democrats did it for lower and appeals judges in 2013, and Republicans did it for Supreme Court justices in 2017 – a party that controls both the White House and the Senate without margin can appoint lifetime-employed federal judges, including to fill any vacancies among the 179 federal appeal seats.
In April, when Mr Biden announced his first three candidates for the Court of Appeal, all three were black women with Ivy League degrees, including Referee Jackson. Another two of the next 10 appellate judges he appointed are also black women. And of his six appeal candidates still awaiting the Senate, three are black women.
Sir. Biden’s decision to use his power to place several black women on the bench – as well as in district courts and high-profile roles in the executive branch – is transformative given the many decades in which they have rarely exercised power in the legal field. system.
The story of black female judges reflects 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 chief judge at the District of Columbia Court of Appeals.
“Black female 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 Black women’s historic journey to the country’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 the limits set for black women in the justice system.
Judge Blackburne-Rigsby declined to comment Wednesday. But in her article, she sounded a warning to see the demographic slow rise to judgment as a matter of numbers alone.
“Being both black and female brings an important extra voice to the predominant process,” she wrote, “but that voice is varied because there is no unique ‘Black woman’ perspective.”
Even after the 1960s civil rights movement, 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 judiciary remained restricted.
In 1966, Mr. 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, Judge Motley was sometimes cited 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 Mrs Brown-Nagin, who is also dean of the Radcliffe Institute for Advanced Study, said that while Judge Motley was “eminently qualified” for exaltation, her political window closed: As a former civil rights lawyer, she was seen as a liberal, and from 1969 to In 1993, there was no vacancy in the Supreme Court while a Democrat was president.
“This deal has been a long time coming,” Brown-Nagin said.