During his campaign, President Biden promised to nominate a Black woman to the Supreme Court. Now he has a chance to fulfill that promise with the announced retirement of liberal Justice Stephen Breyer. Biden should look beyond career judges to someone who can represent the interests of the people—former First Lady Michelle Obama.
Michelle can be a voice of hope on the Court in these times of unprecedented social divisions and institutional erosion. The public perception of the federal judiciary has suffered from the court packing imperatives of the Trump administration years. The Supreme Court has been at the center of public concerns.
Judicial scholars have observed it veer to the right with unusual speed under the Trump era confirmations. It has resorted to little used procedures to fast track cases that seek to undo settled protections for racial minorities and women, for instance, and to hinder the role of the federal government in this regard.
Most notably, the Court declined to temporarily block a Texas law that bans abortions after six weeks—although it skirts the established 1973 Roe v. Wade benchmarks. It opted to review affirmative action cases involving Harvard University and the University of North Carolina—even before the UNC case was heard by the appeals court.
The conservative activism caused Justice Sonia Sotomayor to recently bemoan, “Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts?”
The most talked about candidates are well-credentialed as career jurists, including Ketanji Brown Jackson, Leondra Kruger, and J. Michelle Childs. However, they are in the model of nominees for the Supreme Court of a bygone era.
Moreover, the trend in recent decades to nominate career judges with no writings that provide evidence of their thinking has been controversial—would the Court benefit from nominees with broader professional and personal experiences?
For example, in “The Norm of Prior Judicial Experience and Its Consequences for Career Diversity on the U.S. Supreme Court,” writers Lee Epstein, Jack Knight and Andrew D. Martin noted in 2004, “We argue that all norms that cut against diversity are problematic because they reduce the ability of the decision-making group (the Supreme Court not excepted) to perform its tasks.”
President Biden must consider this concern when seeking a replacement for Breyer. While a nominee will not change the Court balance, she will have a chance to uphold constitutional precedents—and play a role of advocate for the underdog and monitor of court procedures.
Therefore, Biden must look for a nominee with a combination of legal acumen, public trust, and star power. Michelle Obama could serve that role exceedingly well.
She understands the authentic experience of the common folk. As First Lady, she organized an inclusive White House culture and advocated on behalf of women, military families, and public health. The former lawyer brings insight as a Black woman with life experiences that are missing on the Court today.
Her story is well-known due to the popular 2018 memoir, “Becoming.” She grew up on the South Side of Chicago in a close-knit family, graduated from public schools, and studied sociology and African American studies at Princeton University.
After completing Harvard Law School in 1988, she joined the Chicago law firm Sidley & Austin, where she later met Barack Obama. Their courtship was depicted in the 2016 biopic produced by John Legend, “Southside With You,” which portrayed the budding relationship on their first date.
Michelle was a working parent in municipal government and education including assistant commissioner of planning and development in Chicago City Hall, associate dean of student services at the University of Chicago, and vice president of community and external affairs for the UC Medical Center. Her values are those of the moderate and proud Black middle class of Chicago.
Today, the Supreme Court arguably has an imbalance of career judges to the exclusion of other perspectives. Recent nominees have carefully crafted judicial careers with the Supreme Court in mind—it is reasonable to ask whether they are out of touch with the lives of ordinary people? The nomination of Michelle Obama would break the pattern of “judicial monoculture.” She would be an outstanding choice for the Supreme Court.
Roger House is an associate professor of American studies at Emerson College in Boston.