During a Democratic presidential debate on March 16, 2020, candidate Joe Biden said: “If I am elected president and have an opportunity to appoint someone to the courts, I would appoint the first Black woman to the court. It is required that they have representation. Now! It is long overdue.”
Biden first made the promise at a press conference in South Carolina on Feb. 26, 2020, when he accepted Rep. James Clyburn’s endorsement. Biden said he would be honored to appoint the first African American woman to the Supreme Court.
There he said: “The corridors of powers [should] reflect what America looks like – that includes the White House, that includes the staff there. That includes the Cabinet and that includes the Supreme Court and the Congress.”
U.S. Supreme Court seats have historically been filled only by white men – 115 of the 121 Supreme Court justices, or 95% of all appointments. There have been only three white women, two Black men and one Latina. But no Black women.
At the time he made his pledge in early 2020, Biden was fighting for the Democratic Party presidential nomination and was losing the battle. The pledge was forced on this most conservative of establishment Democratic candidates by the struggle of the masses for representation, which intensified with the George Floyd rebellion a few months later.
Biden saw no choice but to promise to address the historic lack of representation of Black people, especially Black women, in this powerful institution.
Hundreds of thousands nationwide were screaming “Black lives matter, reparations now!” Black people were dying of COVID-19 at a higher rate than whites, police were killing Black people indiscriminately, jobs were being lost, student debt continued to grow, people faced evictions, and white supremacists were coming out of the shadows, led by number-one tyrant President Donald Trump.
Securing Black women’s support
What was Biden to do to win? He made promises to the people, specifically African American women, to choose a woman vice-president and appoint a Black woman to the highest court in the U.S. It helped him win the South Carolina Democratic primary, signaling a shift in his fortunes, even though there was no guarantee there would be a Supreme Court seat vacancy.
Bernie Sanders and other Democratic candidates began to drop out of the race. Biden won the nomination – which left him and Trump as the candidates of the two major capitalist parties. His promise was so profound that it helped ensure that an estimated 93% of Black women registered voters came out and cast their vote for Biden in November 2020.
Biden became the 46th president of the U.S. in January 2021. A year later, in January 2022, Supreme Court Justice Stephen Breyer announced his plan to retire.
Biden had an opportunity to wriggle out of his promise at a press conference, like he has broken so many of his other campaign pledges. Instead he announced: “The person I will nominate will be somebody with extraordinary qualifications, character, experience and integrity. That person will be the first Black woman ever nominated to the United States Supreme Court.”
What was Biden thinking? Could it be that he does not really know how deeply seated racism and white supremacy are in the United States?
Once Biden’s promise became a reality, the haters came out. Biden could have said he was going to nominate the best person to succeed Justice Breyer and then appointed a Black woman. Did Biden make a mistake by reiterating his campaign promise, or was all this media attention part of the plan?
The arguments being made in the media against affirmative action in relation to Biden’s announcement are purely based on racism, trying to sell this as a reasonable argument to the masses of people. The burden of all these racist attacks is going to fall on whichever Black woman Biden appoints, during the confirmation hearings and possibly long after her confirmation.
The truth is, Supreme Court appointments have always been primarily political appointments, not based solely on merit or experience as a judge. The president can appoint whoever he or she wants, and the Senate has the power to approve or disapprove. It is rare that the Senate does not approve a presidential appointee.
The Black woman Biden chooses will surely possess all the qualities required of a Supreme Justice. The number-one qualification required of the appointee is to “uphold the Constitution at all costs.” No one would do this with more sincerity, honesty and conviction than Black women, who have so long been denied their rights.
Constitution and slavery
For its time, 230 years ago, the U.S. Constitution was “one of the most revolutionary documents, that … affirmed a form of government never seen before in the history of humanity, that … was the very paragon of democracy and accorded equal rights to all” under the law – at least in theory. (Sam Marcy, “Two contradictory trends in U.S. politics”)
Yet how is it that a key institution of this new government was the Supreme Court, which can invalidate the rights of the majority of the people in this country?
As Marcy explained, it was established as a court of last resort for the rich and powerful. “Whenever the bourgeoisie is in a crisis, they will let nine people, unelected, appointed for life, decide the most critical issues concerning life in the United States.”
The first seven Supreme Court justices appointed by George Washington were slave owners or came from slave-owning families. This is no surprise since Washington was a slave owner himself and in that period chattel slavery was legal. For the elite of this new state, slaves were needed to carry out the hard labor, keep up the living quarters and tend to the needs of the rich whites. No way could they function without slaves.
The “Founding Fathers,” including some who would number among the original seven justices, struggled with how to address slavery. They did not explicitly write the word “slavery” in the Constitution, but included key clauses protecting the institution, including the fugitive slave clause and the three-fifths clause.
Harriet Tubman knew that President Abraham Lincoln was not an abolitionist. His main interest was preserving the Union. Tubman knew that she had to continue to free as many enslaved people as humanly possible.
She had the opportunity to meet Lincoln, to wait in line to meet with him. This would have been an historic moment recorded in history, but she chose not to go. Harriet Tubman, a fugitive slave, served in the Union Army during the Civil War. In the end she had to fight to get compensation in the form of a small pension for her service.
Throughout history, Black women have fought to truly extend the rights stated in the Constitution to every person in the U.S.
A political institution
We know that the appointment of a liberal Black woman will not tip the scales while six right-wing justices stand firm in their opposition to women’s reproductive rights. The U.S. Supreme Court will remain in the position to give a heavy blow to the women’s movement. Reversing Roe v. Wade, agreeing with the narrow option of abortion only up to 15 weeks, or leaving the decision up to individual states, will place a heavy burden on all oppressed and working-class women in the United States.
We need to change the way Supreme Court justices are chosen. These individuals should be democratically elected by the people with defined qualifications and term limits.
The bottom line is that this is all political. We all know that the time is long overdue for a Black woman to be on the Supreme Court and that the words Biden spoke are true.
Biden’s long political career includes his role in the U.S. Senate Judiciary Committee. I remember the 1991 confirmation hearings of Clarence Thomas, especially the awful treatment of Anita Hill, who testified about Thomas’ history of sexual harrassment.
Biden chaired the confirmation hearings and had an opportunity to do the right thing, but he did not want to subpoena the two additional women that could have brought more evidence to support Hill’s claim.
Now, in 2022, he had an opportunity to appoint a Supreme Court justice with extraordinary qualifications, character, experience and integrity; to make history without all this drama.
Instead, he may find himself apologizing to another Black woman for stealing the fire and dampening the spirit of the first Black woman associate justice on the U.S. Supreme Court.
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