With the resignation of Justice Breyer, President Biden has his first opportunity to name a justice to the United States Supreme Court.
“I’m looking forward to making sure there’s a black woman on the Supreme Court,” Biden promised during the 2020 presidential campaign, “to make sure we, in fact, get every representation.”
Modern presidents most often look to the federal courts for their nominees, but a clear-eyed assessment counsels looking beyond that pool if Biden is to keep his promise. Frankly, there are not very many Black women federal judges.
By my count, fewer than 50 women of African descent currently sit on the federal bench. If you think that sounds like a healthy number, consider that roughly 1,770 federal judges serve in the 209 federal courts across the country.
Add to that the inherent ageism we’ve recently built into the Supreme Court appointments process, preferring youth to experience, and 37 of the sitting Black women will have aged out of consideration at 55-years or older. With two more appointed by Republican presidents, the list is even shorter.
At the top of that list:
Judge Ketanji Brown Jackson, on the US District Court for the District of Columbia, and Judge J. Michelle Childs of the US District Court for the District of South Carolina, are impressive women.
Justice Leondra Kruger, who sits on the California Supreme Court, is also on the list. She is young, gifted, and Black but can be conservative in her judicial philosophy, especially in death penalty cases.
This morning the prevailing wisdom is:
Biden should go with a safe bet; don’t make any waves, just seal the deal.
I disagree. President should do precisely the opposite. He should make a courageous and innovative appointment to the Court and make history.
To that end, I would nominate President and Director-Counsel Sherrilyn Ifill of the NAACP Legal Defense Fund.
First, the Supreme Court’s legitimacy is at a low. As it has in the past, the institution would benefit from the addition of justices from diverse backgrounds. Republican appointees Sandra Day O’Connor, a former state legislator, and California Governor Earl Warren come to mind. Ifill would bring the same real-world sensibility to her colleagues and the Court.
Second, we are in a moment of constitutional crisis and inflection in our democracy. From the January 6th insurrection to the assaults on voting rights, abortion, and gun control, the country is divided over settled precedent as we’ve not seen since the 1960s. We need a justice who understands the implications of the Constitution from a civil rights perspective, in the mold of Ruth Bader Ginsburg and Thurgood Marshall.
And speaking of Justice Marshall, President Lyndon Johnson made history with his appointment not only because Marshall was the “first Negro nominee to the Supreme Court,” but also because he hailed from the NAACP Legal Defense Fund. LDF’s mission is to “expand democracy, eliminate disparities, and achieve racial justice in a society that fulfills the promise of equality for all Americans.” This has been Sherilyn Ifill’s work for ten years, as she has led the Legal Defense Fund through perilous times, and it has also been her professional mission in a civil rights career that has spanned three decades.
Johnson trained his domestic policy agenda on civil rights. When his advisors told President Johnson that he should de-emphasize civil rights, Johnson famously barked, “Well, what the Hell is the presidency for!?” He then appointed the first African American to the Supreme Court.
That is precisely what the presidency is for — to use the power of the office to bend our democracy toward justice.
This will be one of the most significant and enduring decisions of Joe Biden’s presidency. Justice Breyer was not only magnanimous but wise to give Biden the opportunity. Breyer no doubt understands the urgency of the historical moment.
President Trump stacked the Court with his justices — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. The Roberts Court is now desperately in need of rebalancing. It is the role of the executive to check that imbalance. President Biden must recalibrate the Court with a nominee who possesses not only a rigorous intellect but an unwavering commitment to civil liberties and human rights. That person is Sherrilyn Ifill.