By MARSHA MERCER
When I wrote last October about liberal activists’ campaign
urging Justice Stephen Breyer to retire, I mentioned President Joe Biden likely
would nominate the nation’s first Black woman justice.
Some readers criticized the idea of making race and
gender a factor.
A reader in Henrico, Va., wrote me: “Will people ever
truly understand that it is better and more important to appoint the best
possible justice, irrespective of race and sex?”
His question is a familiar one, but it implies “the
best possible justice” can’t possibly be both Black and a woman. Even if unintentional,
the implication is wrong.
Judges and justices who bring diverse experiences of more
parts of society have a wider perspective that can enhance their fair and independent
decisions. Their presence on the bench also helps inspire public confidence in
the judiciary.
Ronald Reagan proved the wisdom of judicial diversity
when he made a presidential campaign promise in 1980 to name the first woman
justice to the Supreme Court. He nominated Sandra Day O’Connor the following
year and she served for a quarter century before retiring.
Biden has made a concerted effort to name more women
and people of color to the federal bench, and the Senate has confirmed 40 of
his district and circuit court picks. That’s more
than have been confirmed in a president’s first year since Reagan, the White
House says. Among those confirmed last year, 80%
are women and 53% are people of color.
In contrast, 85% of former President Donald Trump’s judicial
nominees were white and 76% were men, according to the Alliance for Justice, a
progressive advocacy association.
With Breyer’s retirement, Biden is poised to make
history while, like Reagan, delivering on a campaign pledge.
“I’m looking forward to making sure there’s a Black
woman on the Supreme Court to make sure we in fact get everyone represented,”
candidate Biden said at a debate days before the South Carolina Democratic
primary in February 2020.
Breyer’s retirement comes as Democrats need to revive
their base of support before the midterm elections. Even if Biden hadn’t promised to nominate a
Black woman justice, he probably would. It’s not only popular politically but
the right thing to do.
It’s time a Black woman joined the nation’s highest
court.
She will be only the third Black justice in history
and the second, with Clarence Thomas, on the current court, and the fourth sitting
woman justice, with Sonia Sotomayor, Elena Kagan and Amy Coney Barrett.
Critics say Breyer, a pragmatic liberal, likely will be
replaced by a liberal activist. Even if that is so, the liberal wing of the
court will remain a three-justice minority. The six-justice conservative
majority, including the three justices Trump nominated, will stand.
Senate Majority Leader Chuck Schumer promises a speedy
confirmation process, and the Senate can move fast. Then-Majority Leader Mitch McConnell
rushed Trump-nominated Barrett through last fall in one month.
The 50-50 Senate can confirm Biden’s nominee if all 50
Democratic senators stick together and are present that day, and Vice President
Kamala Harris casts the tie-breaking vote.
It’s a stretch to think any Republicans will vote for
Biden’s nominee – though three Republicans did vote last year to confirm Judge
Ketanji Brown Jackson to the U.S. Court of Appeals for the District of
Columbia. They were Sen. Lindsey Graham of South Carolina, Susan Collins of
Maine and Lisa Murkowski of Alaska.
Jackson is on the likely shortlist of candidates for
the high court. She also had bipartisan support when she was nominated for the federal
district court in 2012. None other than Rep. Paul Ryan, Republican of
Wisconsin, introduced her, saying:
“Our politics may differ, but my praise for Ketanji’s
intellect, for her character, for her integrity is unequivocal. She’s an
amazing person, and I favorably recommend her consideration.”
Ryan, who later became House speaker before retiring
in 2018, is related by marriage to the judge.
Also on the shortlist: California Supreme Court
Justice Leondra Kruger and federal District Court Judge J. Michelle Childs of
South Carolina.
Any of them would make an honorable and qualified
addition to the Supreme Court.
©2022 Marsha Mercer. All rights reserved.
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