Finding the first Black woman for the US Supreme Court

In early 2020, and many months away from his nomination as the Democrat's presidential candidate, Joe Biden promised, if elected, to appoint the first-ever Black woman to the US Supreme Court. Of the 115 justices to serve on the US Supreme Court, all but seven have been white men. Should Biden come through on his promise, the candidate would not only be the court’s first Black woman but the sixth ever woman and third Black justice in the court’s 232-year history.

President Biden’s recent affirmation that he would “be honored to appoint the first African-American woman” following the retirement announcement of Justice Stephen Breyer in January 2022 is part of Biden’s broader effort to have institutions that “look like America”. Indeed, of the 40 judges Biden nominated in his first year – the most nominations since Ronald Reagan’s first year in office and twice as many as Trump– almost 80 per cent were women, and 53 per cent were people of colour. President Biden’s experience as chairman of the Judiciary Committee between 1987 and 1995 was instrumental in achieving this outcome. During his tenure, he oversaw six Supreme Court justice confirmation hearings, including Breyer’s in 1994.

Should Biden come through on his promise, the candidate would not only be the court’s first Black woman, but the sixth ever woman and third Black justice in the court’s 232-year history.

President Biden is not the first president to incorporate affirmative action into his campaign rhetoric about Supreme Court nominations. During his 1980 presidential campaign, Ronald Reagan promised to nominate a woman and later nominated Sandra Day O’Connor in 1981. At the peak of the 2020 campaign, when Justice Ruth Bader Ginsburg died, President Trump publicly pledged to replace her with another female justice and nominated Amy Coney Barrett eight days after Justice Ginsburg died.

While not always explicitly publicised, other presidents also selected candidates from underrepresented groups. President Dwight Eisenhower expressed his desire for a Catholic justice in 1956; in 1991 George H.W. Bush is believed to have specifically nominated a Black judge (Clarence Thomas) to replace the first-ever Black justice, Thurgood Marshall; and some secret White House recordings imply Lyndon B. Johnson’s appointment of Justice Marshall in 1967 was deliberate.

Biden’s approach to replacing Breyer may not be novel, but it is pragmatic. For one thing, it significantly refines the search for a replacement. Less than five per cent of the nation’s federal judges are Black women. This narrow pool of candidates is similar to Reagan’s nomination of Sandra O’Connor at a time when women of any race represented about five per cent of federal judges. Given these narrow parameters, there’s a ready-made shortlist for who President Biden will nominate. In his first major interview of the new year, the president revealed there has been a “deep dive” on four candidates. Three frontrunners include…

For the full explainer, read on the United States Studies Centre website (linked).