Biden’s Supreme Court pick will provide unprecedented diversity of experience
As public faith in the Supreme Court reaches historic lows, President Biden’s decision to nominate a Black woman to the court may represent a sea change moment in how Americans view an increasingly out-of-touch institution.
Biden’s decision will open the court’s doors to more Black women jurists — a joyous and long-overdue achievement. Equally important, this nominee can inject a transformative, people-centered perspective into a Supreme Court that too often favors the wealthy and powerful.
One reason why our courts are stacked in favor of the wealthy and powerful is that an overwhelming majority of federal judges were either highly paid corporate attorneys or prosecutors before becoming judges. The same is true of the Supreme Court. Six of the nine justices were corporate lawyers or prosecutors during their careers, while the other three justices spent significant time at elite private law schools.
By contrast, most of the Black women that could make Biden’s shortlist dedicated their careers to helping people with little or no power in our society.
The importance of adding their voices is enormous.
For instance, at a time when Republican states are passing repugnant voter suppression laws targeting people of color, none of the current justices has any experience defending voting rights for historically disenfranchised communities. Judge Holly Thomas does. Thomas was a nationally recognized force in civil rights law before her confirmation to the Ninth Circuit. As a lawyer with the Justice Department’s Civil Rights Division and the NAACP Legal Defense Fund, Thomas fought to uphold people’s constitutional rights and critical legal protections, including the right to vote, the right to marry, equal employment, fair housing and equal educational opportunities.
Similarly, Eleventh Circuit nominee Nancy Abudu spent her career protecting voting rights for communities of color and other historically disenfranchised groups, primarily in the Deep South. Another contender, Sherrilyn Ifill, led the NAACP Legal Defense Fund for over a decade.
If any of these women are chosen to serve on the Supreme Court, they would present a powerful, contrasting perspective to that of President Trump’s three wealthy, white justices. If the Court’s 6–3 conservative majority continues to erode voting rights, any one of these women could offer powerful dissents highlighting the consequences of the court’s previous decisions gutting the Voting Rights Act and greenlighting partisan redistricting.
The experiential diversity of President Biden’s potential nominees extends far beyond civil rights cases, however. Many of the Black women being considered have experience navigating our broken criminal legal system as well.
There are currently no sitting Supreme Court justices with significant experience in criminal defense, meaning no justices have ever represented the wrongfully accused, wrongfully incarcerated, or those punished with punitive and disproportionate sentences. None has ever represented a client that has been tortured in solitary confinement, or that has suffered excruciating pain during a botched public execution. This perspective has been missing from the Court for 30 years following Justice Thurgood Marshall’s retirement.
At least three of the women being considered by Biden would bring that experience. Judge Candace Jackson-Akiwumi represented hundreds of clients as a federal public defender from 2010 to 2020. Judge Eunice Lee of the Second Circuit was an appellate public defender for her entire career, providing free appeals to citizens after their right to an attorney had run out. Judge Ketanji Brown Jackson spent time with the Office of the Federal Public Defender in Washington, D.C. and studied the effects of our unjust sentencing regime as an attorney with the U.S. Sentencing Commission.
Each of these Black women could use her voice to expose the moral stain mass incarceration places on our nation.
Adding one of these highly qualified Black women to the Supreme Court can also catalyze change across every branch of the federal judiciary. Currently, 65 percent of federal appeals judges represented corporations before joining the federal bench. Former prosecutors outnumber judges with criminal defense experience four to one. Meanwhile, less than 10 percent of active federal courts of appeal judges have civil rights backgrounds or any experience as public defenders.
If those trends tell us anything, it is that appointing Black women lawyers to the federal bench means adding more than just increased demographic diversity. When we welcome women of color, especially Black women, experience shows us that we are also improving the professional diversity and legitimacy of our courts. We are inviting the voices and stories of the people they represented into the halls of justice. This too is worth celebrating.
Rakim H. D. Brooks is the president of Alliance for Justice and a public interest appellate lawyer. Alliance for Justice is a national association of over 130 organizations, representing a broad array of groups committed to progressive values and the creation of an equitable, just, and free society.
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