Biden’s Supreme Court choice: A political promise, but also a matter of justice

President Joe Biden removes his face mask as he prepares to deliver remarks on the retirement of Supreme Court Associate Justice Stephen Breyer
Associated Press/Andrew Harnik

A total of 115 justices have served on the U.S. Supreme Court since it was created in 1789, including only two Black men and only five women. As bad as that is, it is even more disgraceful that not one Black woman has ever been appointed to the nation’s highest court. Not one!  

Fortunately, this is one glass ceiling that is about to shatter, with the vacancy being created by the retirement of Justice Stephen Breyer. President Biden, who announced Breyer’s retirement Thursday with a pledge to choose his replacement before the end of February, reaffirmed his campaign promise to fill the first vacancy on the Supreme Court during his term with a Black woman.  

“I’ve made no decision except one: 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,” Biden said.

The president should be applauded for sticking to his promise, which drew criticism from Republicans when he made it. While long overdue, this is a historic step. As a Black woman, I am particularly excited at the thought of another woman finally joining our nation’s highest court. This should be welcome news for all Americans who believe in justice and equality.  

Our judicial system and the American people benefit when people of diverse backgrounds and perspectives sit on courts at all levels. We are better off as a nation and our democracy is stronger when talented women, as well as men of all races and ethnicities, have the opportunity to advance to the highest levels of their professions.  

Fortunately, Senate Republicans won’t be able to use the filibuster to block Biden’s appointment of the first Black female Supreme Court justice in American history.   

None other than the current Senate Minority Leader Mitch McConnell, (R-Ky.) orchestrated a vote by Republicans in 2017 (when they were in the Senate majority) to lower the votes needed to confirm Supreme Court justices from 60 to 51, so the Senate could confirm Neil Gorsuch to the high court.  

Chances are that Biden’s nominee for the Supreme Court will get the votes of all 50 Senate Democrats to confirm her. The nominee might even pick a few Republican votes. Even if all Republicans oppose the nominee, Vice President Kamala Harris can cast a tie-breaking vote.  

Don’t get me wrong. We have had many great White male justices. They issued the landmark 1954 Brown v. Topeka decision saying racial segregation in public schools is unconstitutional. They issued the 1973 Roe v. Wade decision upholding the right of women and girls to get abortions, although that right has been weakened by restrictive state laws and is now in danger of being overturned by the Supreme Court.   

And, of course, just because a justice is Black or a woman doesn’t guarantee how he or she will vote on the high court.   

Justice Clarence Thomas, who became the second Black man appointed to the Supreme Court in 1991, is an arch-conservative who has voted to weaken the Voting Rights Act of 1965, even though the act was designed to tear down barriers blocking African Americans from voting.  Justice Amy Coney Barrett, a conservative appointed by then-President Trump to the high court in 2020, is widely expected to vote to further restrict abortion rights.  

But expanding the number of women on the nine-member Supreme Court from three to four and the number of Blacks to two will add an important voice to the court in its closed-door deliberations and could influence the outcome of some cases.   

Men and women and Blacks and whites are of course equal, but we are not identical. Black people have not just read about racism or seen examples of it on TV and in the movies. We’ve experienced it all our lives. In the same way, women have experienced sexism from the time we were young girls.   

By sharing these experiences with her fellow justices, the Black female justice Biden appoints to the Supreme Court can help them better understand the real-world impacts of the decisions they make.    

Biden’s appointee will not alter the ideological makeup of the court of six conservatives and three liberals, since the new justice will simply replace Breyer on the liberal wing.    

The president has plenty of extraordinarily qualified Black women to choose from to succeed Breyer. They include California Supreme Court Justice Leondra Kruger; Judge Ketanji Brown Jackson of the U.S. Circuit Court of Appeals for the District of Columbia; U.S. District Judge J. Michelle Childs of South Carolina — who Biden has already nominated to be an appellate court judge and who is backed by Rep. James Clyburn, (D-S.C.) — and civil rights attorney Sherrilyn Ifill, who will soon leave her position as head of the NAACP Legal Defense and Educational Fund.  

Other possible appointees include North Carolina Supreme Court Justice Anita Earls, U.S. District Judge Wilhelmina “Mimi” Wright of Minnesota and U.S. Circuit Court of Appeals Judges Eunice Lee of New York and Candace Jackson-Akiwumi of Illinois.  

It has taken 233 years to put America on the threshold of getting its first Black female Supreme Court justice. Biden’s decision to finally right this wrong by nominating a Black woman who I’m sure will be extremely well-qualified shows his strong commitment to equity and to opening the doors of the American Dream to all Americans.  

Donna Brazile is a political strategist, a contributor to ABC News and former chair of the Democratic National Committee. She is the author of “Hacks: Inside the Break-ins and Breakdowns That Put Donald Trump in the White House.”

Tags Amy Coney Barrett Biden Biden Supreme Court nominee Clarence Thomas Donald Trump Joe Biden Ketanji Brown Jackson Leondra Kruger Mitch McConnell Neil Gorsuch Stephen Breyer Supreme Court of the United States U.S. Supreme Court United States federal courts

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