Justice Delayed, Justice Denied
President Biden has announced that his nominee for the Supreme Court seat vacated by Justice Stephen Breyer will be a Black woman, and some people lost their minds. To be precise, what the president said was, “The person I will nominate will be someone with extraordinary qualifications, character, experience and integrity, and that person will be the first Black woman ever nominated to the United States Supreme Court.” Rightwing critics immediately skipped over the “extraordinary qualifications, character, experience and integrity” words to focus on the “Black woman” words as they immediately started trashing the nominee who has not even been named yet.
Heaven help the person with extraordinary qualifications, character, experience and integrity who is fortunate enough to be nominated to the Supreme Court. If that person is a Black woman, she will suffer untold vicious abuse in a nation that still harbors the most wretched, despicable and unconscionable racist attitudes, and not just among those who lack a good education. Ilya Shapiro, a constitutional law scholar who is on his way to heading up a prestigious center at Georgetown Law, damned the potential nominee as a “lesser Black woman” when compared to his favorite candidate, proclaiming that whomever it might be she will have “an asterisk” by her name forever as being “lesser” than the supremely qualified male person he favors. He later deleted his “inartful” tweet, bemoaning his “poor choice of words,” but racism and sexism are far more than words, they are habits of the mind and routine practice that prevent extraordinarily well qualified people from advancing in the workplace, in education, in opportunity because of the color of their skin, their gender, ethnicity, sexual orientation or other personal characteristics.
Justice for Black women has been denied throughout the long history of these United States. The under-representation of women, and particularly Black women, in many professions is well documented. By some accounts, Black women make up just 2% of lawyers in the United States; the number of Black women judges is relatively small, and only 8 Black women have ever served on a United States Court of Appeals, a position considered to be the most logical launching pad for a Supreme Court nomination.
Since 1789, 114 people have served on the United States Supreme Court, including two Black men (Thurgood Marshall, Clarence Thomas), one Hispanic woman (Sotomayor) and four White women (O’Connor, Ginsburg, Kagan and Barrett). No Asians, and no Black women. In fact, women did not get a seat on that high bench until 1981 when President Reagan nominated Sandra Day O’Connor, the first woman. There are more graduates of Harvard (3), Yale (3) and Georgetown Prep (2) on the Supreme Court than there are Hispanics (1), Asians (0) or Black women (0).
The long history of exclusion of diverse voices from this hugely important branch of federal government is a shameful part of our nation’s tortured history on racial and gender equity; it’s also evidence of the reasons why change is so hard to achieve through judicial rulings since the experience and perspectives of so many populations in our society are not at the table. The impending fight over the implications of the president’s intentional nomination of a Black woman is about more than one race; it is a microcosm of our nation’s profound struggle over the construction of a society with so many diverse and divergent races, voices, experiences, needs and expectations.
Rest assured, this fight will be nasty. Republicans in the Senate are already plotting how they can delay the nomination vote until after the November elections when they believe they will regain control of the Senate and possibly the House. Senator Mitch McConnell, now minority leader but itching to return as majority leader, is responsible for one of the most vile and insidious actions ever in the history of the Senate when he blocked President Obama’s nomination of Merrick Garland to the Court for almost a year before the nomination died without a vote after the election of President Trump. Yet, that same Senator McConnell engineered a one-month accelerated confirmation for Amy Coney Barrett to fill the seat opened by the death of Justice Ruth Bader Ginsburg immediately before the 2020 election of President Biden.
Any delay in the confirmation of the new Supreme Court justice will be an effective denial of justice for our nation and the people who are depending on Court rulings in pending cases. More to the point, delaying any vote on the nomination of a Black Woman to the Supreme Court will effectively deny justice for African Americans who have waited to long for a seat on the bench. A justice delayed will truly mean justice is denied for those who have been excluded since 1789. It’s time for America to grow up, take responsibility and do the right thing. It’s long past time for a Black woman to be Madam Justice sitting alongside her eight other colleagues on the Supreme Court bench.
