After 108 white men, the Supreme Court could use a Black woman’s perspective

OPINION: The absence of a Black woman on the Supreme Court deprives fellow justices of insights from the perspectives of someone who has experienced both racism and sexism firsthand.

The U.S. Supreme Court is shown on Jan. 19, 2022, in Washington. Democrats ironclad unity on President Joe Biden’s nominations to the courts has helped Biden appoint the most judges during the first year of a presidency since John F. Kennedy. (AP Photo/Mariam Zuhaib, File)

I don’t often agree with Sen. Lindsey Graham (R-S.C.), who was one of former President Donald Trump’s biggest supporters in Congress before Trump was defeated for reelection. But I strongly agree with Graham’s recent comment endorsing diversity in filling the upcoming vacancy on the Supreme Court: “Let’s make the court more like America, but qualifications have to be the biggest consideration.”

Graham went on to praise U.S. District Judge J. Michelle Childs of South Carolina, a brilliant Black woman being considered by President Joe Biden for appointment to the Supreme Court, calling the judge “highly qualified.”

I’m not endorsing any particular candidate, but Graham is right about Judge Childs’ qualifications. And she is just one of many extraordinarily talented Black female attorneys and judges who would make outstanding Supreme Court justices.

Judge J. Michelle Childs, who was nominated by President Barack Obama to the U.S. District Court, listens during her nomination hearing before the Senate Judiciary Committee on Capitol Hill in Washington, April 16, 2010. (AP Photo/Charles Dharapak, File)

Unfortunately, President Biden has been harshly and unfairly criticized by many Republicans and right-wing commentators for saying he plans to nominate “someone with extraordinary qualifications, character experience and integrity” who “will be the first Black woman ever nominated to the United States Supreme Court.”

For example, Sen. Ted Cruz (R-Texas) is one of the Republicans who have completely ignored Biden’s comment about qualifications and focused solely on the fact that Biden said he wants to put a Black woman on the high court for the first time in its 233-year history. 

Speaking on his podcast, Cruz said of Biden: “The fact that he’s willing to make a promise that it must be a Black woman — I gotta say that’s offensive.” Cruz then went even further and ridiculously called Biden’s promise “actually an insult to Black women.” 

The Republican argument seems to be that no matter which Black woman Biden nominates, she must be less qualified than any other potential justices. After 108 White men, two Black men and five women (four Whites and a Latina) on the Supreme Court, many in the GOP seem to feel it’s just too soon to add a Black woman. 

As we mark Black History Month, we can be proud of all the progress African Americans have made in this country since slavery ended in 1865. But we have to recognize that this progress has been far too slow in just about every area — even more so for Black women than for Black men.

The first Black female lawyer admitted to the bar in the United States is believed to be Charlotte E. Ray, after she graduated from the Howard University Law School in 1872. Constance Baker Motley became the first Black woman named a U.S. district judge in 1966. 

New York, Close-ups of Mrs Constance Baker Motley, former Manhattan Borough president, who was recently named by President Johnson to fill a vacancy on the Federal District Court in New York City. (Photo: Getty Images)

To this day, only 70 of the 3,843 people who have ever served as a federal judge at any level in American history have been Black women — less than 2%. Eleven of these have been appointed by Biden in just over a year in office, which is more than all but two presidents in their entire terms of office. 

No president comes close to Biden in appointing as high a percentage of Black female judges. A total of 24% of federal judges appointed by Biden are Black women. The next-highest percentages are 8% for President Barack Obama, 4% for President Bill Clinton and 3% for President Jimmy Carter. Less than 1% of the judges appointed by Trump were Black women.

Biden has nominated eight Black women to federal appeals courts, which rank above district courts and just below the Supreme Court. In all of American history before Biden became president, only eight Black women have served as appeals court judges. 

The first Black Supreme Court justice was Thurgood Marshall, appointed in 1967, and succeeded in 1991 by the second Black justice, Clarence Thomas. The first female justice was Sandra Day O’Connor, appointed in 1981.

No one can seriously argue that in all of American history there has never been a Black woman qualified to serve on the Supreme Court. The truth is that throughout most of our history, the only people even considered for appointment to the high court were White men.

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

The absence of a Black woman on the Supreme Court deprives fellow justices of insights from the perspectives of someone who has experienced both racism and sexism firsthand, not just by reading about such discrimination. Having a Black woman on the court will be particularly important when the justices hear cases dealing with topics such as affirmative action, reproductive rights, voting rights, equal opportunity, and criminal justice reform. 

Other presidents have also selected Supreme Court nominees to promote diversity. President Woodrow Wilson ignored antisemitic attacks against Louis Brandeis to nominate him to become the first Jewish justice in 1916. President Dwight Eisenhower expressly sought to appoint a Catholic to the Supreme Court in 1956, selecting William Brennan to ensure there would be one Catholic on the court. 

President Lyndon Johnson nominated the extraordinarily qualified Thurgood Marshall to become the first Black justice. In 1980, then presidential candidate Ronald Reagan said he would nominate the first woman justice, and he kept his word by nominating Sandra Day O’Connor. President George H.W. Bush nominated Clarence Thomas to replace Marshall to preserve Black representation on the court. President Trump said he would nominate a woman to replace Justice Ruth Bader Ginsburg when she died, and soon chose Amy Coney Barrett

Now, at long last, we are on the threshold of having a Black woman join the Supreme Court. I’m hopeful that President Biden’s nominee will pick up the votes of at least a few Republicans, including Sen. Graham. 

President Joe Biden speaks on the economy during an event at the South Court Auditorium at Eisenhower Executive Office Building on November 23, 2021 in Washington, DC. (Photo by Alex Wong/Getty Images)

But even if all 50 Republican senators oppose Biden’s pick, she can be confirmed with the votes of all 50 Senate Democrats and a tie-breaking by Vice President Kamala Harris, the first Black and South Asian woman to hold that office.  

The first Black woman on the Supreme Court will serve as a role model and inspiration of Black girls and women, telling them there is no longer a glass ceiling limiting their rise in the legal profession. 

One of these extraordinarily talented up-and-coming Black women is my niece Brianna, who fulfilled her dreams and my dreams for her by becoming a lawyer. I don’t know if she will ever serve on the Supreme Court, but I certainly hope we don’t have to wait another 233 years for the second Black woman to join our nation’s highest court.

Donna Brazile Headshot
(Credit: Courtesy)

Donna Brazile is an ABC News Contributor, veteran political strategist, an adjunct professor at Georgetown University, and the King Endowed Chair in Public Policy at Howard University. She previously served as interim Chair of the Democratic National Committee (DNC) and of the DNC’s Voting Rights Institute. She managed the Gore campaign in 2000 and has lectured at more than 225 colleges and universities on race, diversity, women, leadership and restoring civility in politics. Brazile is the author of several books, including the New York Times’ bestseller “Hacks: The Inside Story of the Break-ins and Breakdowns That Put Donald Trump in the White House.” @DonnaBrazile

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