When President Biden announced a couple of years ago that his first appointment to the Supreme Court would be a Black woman, I don’t think he was really thinking about ensuring that a previously-silenced voice would be heard on the Court.
I believe he was thinking about his plummeting poll numbers and a last-ditch effort to save a floundering campaign. If you remember back to the late winter of 2020, we had suddenly been confronted by the COVID pandemic. Simultaneously, the democratic primaries were starting and President Biden was barely keeping up with the front runners who included Bernie Sanders, Pete Buttigieg, and Amy Klobuchar.
Biden was about to become a footnote.
And then Jim Clyburn, the wildly popular member of Congress in South Carolina wrapped the future president in his warm embrace and told him that he could deliver South Carolina for the embattled candidate. In exchange, candidate Biden sensing the absolute need to secure the Black vote, promised that if he won, the first Supreme Court Justice he appointed would be a Black woman.
I think it is about time we had a Black woman on the court. No question that the Supreme Court should reflect the population that it serves.
And it is not as if it is difficult to find qualified Black women to serve on the court. There appear to be plenty. So the suggestion that favoring a Black woman over any other candidate will not serve our country with the “best” or “strongest” candidate is foolish. The women under consideration rock for the most part. Their intelligence, empathy, and experience should inevitably lead at least one of these women to a seat on the Court.
The unfortunate part of this whole process is that by using the appointment as a political tool to secure the Democratic presidential nomination, future President Biden minimized the distinction of each of the candidates up for consideration. In some circles, he turned the candidates into tokens and took away their legitimacy to serve on the highest court.
And that is why announcing ahead of time that he would choose a Black woman candidate was wrong. It was wrong because it was done to serve a naked personal political interest. And it was wrong because it gave skeptics an easy way to challenge the competence and abilities of the selected candidate.
That is unfair to the Court, the candidate, and the country.
At least since the nomination of Robert Bork in 1987 by President Ronald Reagan, and continuing through the Clarence Thomas nomination, and the Bush v. Gore litigation, the Supreme Court which once appeared above the fray, has become entangled more and more in everyday politics.
That saps the legitimacy away from the court and leads to cracks in our democratic institutional foundations. Governmental institutions have been susceptible to domestic rhetorical attack for more than three decades. Making pronouncements about the Court for political gain has not enhanced the institutional integrity of the Court. Instead, it has caused more fractures.
I can recall life in America in the 70s and 80s. Few people knew who the Justices of the Supreme Court were back then. Even fewer were aware of the selection process for a Justice. I fear that the appointment of the first Black woman to sit on the Court will lead to unnecessary questioning of the selection’s capacity to ensure that justice is done. That is not fair to the Justice, or the country.
Eric Brown is an attorney with offices in Connecticut. He can be reached at 888-579-4222 or online at www.thelaborlawyer.com.