Joe Biden must put a Black woman on the Supreme Court

OPINION: The president campaigned on a promise to nominate a Black woman to the nation's highest court. Now he must keep his word.

Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, April 23, 2021. (Erin Schaff/The New York Times via AP, Pool, File)

Let me say it straight out: President Joe Biden owes Black women BIG. It was Black women who rallied for him in the South; it was Black women who saved him in the primaries, and, although we all love Vice President Kamala Harris, it’s time that a Black woman sat on the nation’s highest court.

To date, only two Black people, both men, have served on the U.S. Supreme Court: Thurgood Marshall and current Justice Clarence Thomas, and they could not be more ideologically different. I was disappointed twice when President Barack Obama did not put a Black woman on the high court. Instead, he made a historic choice in Latina Justice Sonia Sotomayor and then Justice Elena Kagan, a Harvard classmate and U.S. solicitor general.

The Supreme Court now has three female justices, two white and one Latina. No other woman of color has been appointed. President Biden campaigned on putting a historic Black female justice on the court. And now that Justice Stephen Breyer is reportedly retiring, we need to hold Biden to it. Although I know the LGBTQ+ and the Asian community will want to see their communities represented, they can wait in line. Black women have been the backbone of the Democratic Party. They have always been overlooked and relegated to the cheap seats. Not this time. We must be clear that there are many qualified Black female jurists around the nation, and Biden will have a broad array of amazing sisters to choose from.

For those who will tell me that I am pushing affirmative action or a race-based choice for the nation’s high court—let me help you out: You damn right I am, and here is why. For nearly 180 years, our Supreme Court was all-white, all-male and all-privileged; some were slaveholders and outright racists, and one was a former KKK member. It wasn’t until 1967, the year I was born, that a Black man was nominated and confirmed to the Supreme Court. That man was the legendary civil rights giant, Thurgood Marshall. His legacy on the court is forever enshrined in our nation’s soul when it comes to racial equality and justice. On the other hand, Justice Thomas is an avowed conservative who has not been supportive of issues around race or gender equality. He is solidly in the court’s right-leaning six-person majority and will likely stay that way.

The Supreme Court is seen on the first day of the new term, in Washington, Oct. 4, 2021. (AP Photo/J. Scott Applewhite, File)

Right now, there are several Black female candidates that President Biden can consider for his historic pick. Sherrilyn Ifill of the NAACP Legal Defense Fund, who will be stepping down in the springJudge Leondra Kruger of the California Supreme Court (Harris could drive this choice to the top of the list); Judge Kentanji Brown Jackson, who was recently appointed to the U.S. Court of Appeals seat previously held by current Attorney General Merrick Garland; or Judge Wilhelmina “Mimi” Wright, who sits on the U.S. District Court for the District of Minnesota. Any of these names should be a pretty easy confirmation, assuming that Democratic Sens. Joe Manchin and Kyrsten Sinema do not go rogue and fail to support the nominee. I also think Republican Sens. Lisa Murkowski of Alaska, Mitt Romney of Utah and Susan Collins of Maine are in play to help confirm a Biden nominee. It will be a bad look for the entire Republican Senate Caucus to vote against a historic Black female nominee.

In the final analysis, polling data shows that Black voters are growing weary of the Democratic Party’s empty promises. It happened here in Virginia. Democratic gubernatorial candidate Terry McAuliffe won a primary that featured two Black female legislators. They lost to him pretty handily, but what happened in the general election in November 2021 was that Black female voters stayed at home. Exit polling data showed that Black women in the Commonwealth voted by 6 percentage points fewer than in 2020’s presidential election. They didn’t vote for Youngkin. They just didn’t show up.

My point is this: Biden chose to work on a bipartisan economic relief package as his first act as president. Voting rights legislation was placed on the political backburner—and we know how that worked out. So, I hope that Biden will actually deliver on his 2020 presidential primary promise that, if given a chance to appoint a justice to the high court, he would put a Black woman in that spot. Full stop.

This is a developing story, but we need to hear from us (Black women) on issues around abortion rights, fair housing, race-conscious admissions, maternal care, education, health and on and on. The new Trump Supreme Court is conservative, and Justice Breyer retiring will not change that fact. However, what will change if Biden honors his word is that we will finally hear the common sense, brilliance and wisdom of a Black female jurist through her unique life experience as a woman and as a person of color. 

Sophia A. Nelson is a contributing editor for theGrio. Nelson is a TV commentator and is the author of “The Woman Code: Powerful Keys to Unlock,” “Black Women Redefined.”

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