Originally published by The 19th
President Joe Biden is poised to follow through on his campaign promise to appoint the first Black woman to the Supreme Court, as reports emerged Wednesday that Justice Stephen Breyer was set to retire.
Black women constitute just about 3 percent of the federal judiciary, and none has ever been nominated to the Supreme Court, prompting a growing push from advocacy groups for Biden to fulfill what they see as long overdue.
“Appointing a Black woman to the Supreme Court is the next and necessary step towards a truer form of democracy and ensuring that our unique experiences and perspectives are represented,” Kimberly Tignor, a cohort member of the progressive She Will Rise campaign for a Black woman on the Supreme Court, previously told The 19th.
The president has nominated more Black women — eight — to the U.S. Court of Appeals than any other administration. Five have been confirmed so far.
One of those women is Ketanji Brown Jackson, a judge for the U.S. Court of Appeals for the D.C. Circuit, who is widely seen as a top prospect for Biden’s first Supreme Court nomination. Two other Black women appointed to appellate court positions around the same time as Jackson are Judge Candace Jackson-Akiwumi on the U.S. Court of Appeals for the 7th Circuit and Judge Tiffany Cunningham on the U.S. Court of Appeals for the Federal Circuit.
Jackson, who was confirmed in June, is a former public defender. She previously clerked for Breyer, served on President Barack Obama’s Sentencing Commission and was named on Obama’s Supreme Court shortlist in 2016.
In modern years, the U.S. Court of Appeals has been a stepping stone to the Supreme Court, with 13 of the last 14 confirmed justices coming from the appellate court. The age of any potential nominees will undoubtedly be another consideration for Biden’s team given that the Supreme Court is a lifetime appointment.
The five most recent Supreme Court nominees have been between 48 and 55 years old at the time they were confirmed.
Just 40 Black women are “active,” or full-time federal judges, and they face barriers at every level when it comes to reaching these positions, said Dr. Taneisha Means, an assistant professor of Political Science at Vassar College. Black women are underrepresented in high-profile legal clerkships, an important stepping stone in the profession. For those who are able to gain this coveted experience, “getting on the radar of people who have the ear of the president and who can recommend people for federal judicial appointments is a major challenge for Black women,” Mean said.
When it comes to the Supreme Court, previous experience as a federal judge has become more important for modern era nominees.
“For the past few decades most of them have come from the lower federal courts,” Means said. “If there are not enough Black woman judges who are district and appellate level judges, then we won’t have a Black woman in the States or in the Supreme Court,
The diversity of Biden’s judicial appointments could set the stage for more diverse Supreme Court nominees in the future. But even with the credentials that accompany the Black women like Jackson who are nominated to a federal judgeship, Means’ research indicates these nominees face longer delays by the Senate before they are confirmed and are seen as more partisan or radical than white nominees. These factors may all come into play with the Black women Biden picks for the highest court.