By MARSHA MERCER
When I wrote last October about liberal activists’ campaign urging Justice Stephen Breyer to retire, I mentioned President Joe Biden likely would nominate the nation’s first Black woman justice.
Some readers criticized the idea of making race and gender a factor.
A reader in Henrico, Va., wrote me: “Will people ever truly understand that it is better and more important to appoint the best possible justice, irrespective of race and sex?”
His question is a familiar one, but it implies “the best possible justice” can’t possibly be both Black and a woman. Even if unintentional, the implication is wrong.
Judges and justices who bring diverse experiences of more parts of society have a wider perspective that can enhance their fair and independent decisions. Their presence on the bench also helps inspire public confidence in the judiciary.
Ronald Reagan proved the wisdom of judicial diversity when he made a presidential campaign promise in 1980 to name the first woman justice to the Supreme Court. He nominated Sandra Day O’Connor the following year and she served for a quarter century before retiring.
Biden has made a concerted effort to name more women and people of color to the federal bench, and the Senate has confirmed 40 of his district and circuit court picks. That’s more than have been confirmed in a president’s first year since Reagan, the White House says. Among those confirmed last year, 80% are women and 53% are people of color.
In contrast, 85% of former President Donald Trump’s judicial nominees were white and 76% were men, according to the Alliance for Justice, a progressive advocacy association.
With Breyer’s retirement, Biden is poised to make history while, like Reagan, delivering on a campaign pledge.
“I’m looking forward to making sure there’s a Black woman on the Supreme Court to make sure we in fact get everyone represented,” candidate Biden said at a debate days before the South Carolina Democratic primary in February 2020.
Breyer’s retirement comes as Democrats need to revive their base of support before the midterm elections. Even if Biden hadn’t promised to nominate a Black woman justice, he probably would. It’s not only popular politically but the right thing to do.
It’s time a Black woman joined the nation’s highest court.
She will be only the third Black justice in history and the second, with Clarence Thomas, on the current court, and the fourth sitting woman justice, with Sonia Sotomayor, Elena Kagan and Amy Coney Barrett.
Critics say Breyer, a pragmatic liberal, likely will be replaced by a liberal activist. Even if that is so, the liberal wing of the court will remain a three-justice minority. The six-justice conservative majority, including the three justices Trump nominated, will stand.
Senate Majority Leader Chuck Schumer promises a speedy confirmation process, and the Senate can move fast. Then-Majority Leader Mitch McConnell rushed Trump-nominated Barrett through last fall in one month.
The 50-50 Senate can confirm Biden’s nominee if all 50 Democratic senators stick together and are present that day, and Vice President Kamala Harris casts the tie-breaking vote.
It’s a stretch to think any Republicans will vote for Biden’s nominee – though three Republicans did vote last year to confirm Judge Ketanji Brown Jackson to the U.S. Court of Appeals for the District of Columbia. They were Sen. Lindsey Graham of South Carolina, Susan Collins of Maine and Lisa Murkowski of Alaska.
Jackson is on the likely shortlist of candidates for the high court. She also had bipartisan support when she was nominated for the federal district court in 2012. None other than Rep. Paul Ryan, Republican of Wisconsin, introduced her, saying:
“Our politics may differ, but my praise for Ketanji’s intellect, for her character, for her integrity is unequivocal. She’s an amazing person, and I favorably recommend her consideration.”
Ryan, who later became House speaker before retiring in 2018, is related by marriage to the judge.
Also on the shortlist: California Supreme Court Justice Leondra Kruger and federal District Court Judge J. Michelle Childs of South Carolina.
Any of them would make an honorable and qualified addition to the Supreme Court.
©2022 Marsha Mercer. All rights reserved.