by Natasha Ishak

This article was originally published at Prism

Last week, Justice Stephen Breyer surprised the public by announcing his retirement, paving a path for President Joe Biden to pick a liberal replacement to fill the retiring jurist’s seat on the Supreme Court. The president had repeatedly stated he would nominate a Black woman to the court during his presidential campaign and reaffirmed his pledge to do so.

“While I’ve been studying candidates’ backgrounds and writings, 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 announced during a press conference alongside Breyer last Thursday. “It’s long overdue, in my opinion.” The president also confirmed that a nominee would be announced before the end of February.

If appointed, Biden’s nominee would be the first Black woman to occupy a seat on the Supreme Court since it first assembled in 1790. But the announcement has triggered extreme pushback, largely by conservatives falsely implying that the unidentified nominee will be chosen based solely on their race and gender.

Sen. Ted Cruz, a Texas Republican, called Biden’s decision “offensive” and “an insult to Black women.” Sen. Roger Wicker, a white Republican from Mississippi, likened a potential Black woman Supreme Court nominee to a beneficiary of “affirmative action.” And former Rep. Tulsi Gabbard, a conservative Democrat from Hawai’i, responded by tweeting that Biden had chosen Vice President Kamala Harris as his presidential running mate only because of her race and gender.

Dr. Niambi Carter, an associate professor of political science at Howard University, described the furor as disingenuous.

“Underlying all of this is this idea that white men are colorless, that white men are somehow objective arbiters of justice, that they’re always qualified,” Carter said. “And that there’s nothing to be gained from having a court that is reflective of the diversity of America.”

A recent ABC News/Ipsos poll found that just over three-quarters of Americans, or 76%, want Biden to consider “all possible nominees” rather than consider only Black women for the court seat as the president had promised. By comparison, only 23% support Biden’s decision to follow through on his campaign pledge.

But Biden is not the first president to consider a nominee’s identity in their appointment to the Supreme Court. Beyond a candidate’s professional qualifications, identifiers such as race, ethnicity, gender, and even religion have long played a part in the consideration process for Supreme Court nominations.

Notable examples include former President Dwight D. Eisenhower, who endeavored to appoint the first Roman Catholic on the Supreme Court by nominating the late Justice William Brennan Jr. in 1956. Former president Ronald Reagan pledged to name the first woman to the court as part of his 1980 presidential bid and followed through when he nominated now-retired Justice Sandra Day O’Connor. Reagan also considered Antonin Scalia’s heritage in his nomination, intent on making the late conservative justice the first Italian American to occupy a seat on the highest court. Most recently, former President Donald Trump’s nomination of Justice Amy Coney Barrett two years ago fulfilled his vow to replace the late Justice Ruth Bader Ginsburg with another woman jurist. This history shows how much politics is involved in Supreme Court appointments, despite arguments by some to the contrary.

“It’s an easy win for this administration,” Carter said of Biden’s commitment to fulfilling his campaign promise. “[Appointing a Black woman to the Supreme Court] is something they actually can do because we see how Build Back Better has stalled, we’ve seen how nothing is happening on voting rights. This is something that he can actually do and say, ‘look what I did.’”

According to ABC News, there are at least 14 Black women being considered for the Supreme Court seat. The White House has not confirmed any names but several highly qualified Black women have been floated in public as potential Supreme Court nominee picks. Among the possible candidates are Judge Ketanji Brown Jackson, a Harvard Law School graduate who clerked under Breyer and was later nominated by former President Barack Obama to D.C.’s Federal District Court before serving on the U.S. Court of Appeals for the D.C. Circuit; Justice Leondra Kruger, a Yale Law School alum who has served on the California Supreme Court for the last seven years; and Judge J. Michelle Childs, who became a prominent attorney in South Carolina before serving as a state judge then sitting on the U.S. District Court for South Carolina as an Obama appointee.

“If we look objectively at the Black women that made the shortlist, no one can question their credentials because they are solid,” said Dr. Emmitt Riley III, an associate professor of political science and Africana studies at DePauw University. The backlash, he said, was a result of white supremacists pushing against a changing nation. “In particular, we see from other historic firsts, whenever Blacks are elevated to a space for the first time, they oftentimes face unprecedented opposition,” Riley noted.

According to Carter, the backlash is textbook misogynoir.

“The idea that somehow these are pity picks or that these women are lesser than, is not about their qualifications,” the Howard professor said. “It’s about racism and sexism.”

Replacing Breyer, a centrist liberal, will do little to change the court’s ideological tilt, currently at a six-to-three conservative majority. Still, a Black woman jurist on the country’s highest court would be historic and would likely have an impact beyond surface-level representation.

“The court is about to give some very interesting challenges to voting rights, affirmative action, and a number of other cases that are important to Black communities,” Riley noted. “I think that having a Black woman in the room in particular will shape how deliberations go, the types of questions that are going to be asked.”

Sen. Susan Collins, a Republican from Maine, criticized Biden’s handling of the nomination process and urged against a “rushed” process, drawing comparisons to Justice Barrett’s 27-day expedited confirmation by the then-majority GOP. Many speculate that Democrats will similarly be looking to confirm Biden’s Supreme Court nominee as quickly as possible.

Sen. Dick Durbin, a Democrat from Illinois and chair of the Senate Judiciary Committee, stated that the party is not trying to out-speed Barrett’s confirmation but signaled that a confirmed Supreme Court appointment by mid-April would be “realistic.” 

With Breyer’s retirement this summer and midterm elections in the fall, it is clear that securing Biden’s appointment on the court sooner rather than later will be a top priority for Democrats.

Natasha Ishak is a New York City-based journalist who covers politics, public policy, and social justice issues. Her work has been published by VICE, Fortune, Mic, The Nation, and Harvard’s Nieman Lab among other places. Follow her on Twitter @npishak.

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