An idea to restore balance to the Supreme Court has gained a lot of ground among progressives in recent years. As of last year, Congress hadn’t even proposed a bill to do so. More than 50 members of the House and Senate support the Judiciary Act of 2021, which would add four seats to the court.
Adding seats is constitutional, and it has been done repeatedly over the years.
Sen. Ted Cruz, R-Texas, has described the Biden (my spell-checker keeps replacing ‘Biden’ with ‘Obama’) administration’s pledge to nominate a Black woman to the Supreme Court as “illegal” and “discriminatory.“
Cruz told Fox News Sunday that Biden’s plan to consider only a Black woman for the job of replacing retired Supreme Court Justice Stephen Breyer was a form of racial discrimination. (editor’s note: technically, it is not a ‘form’ of discrimination-rather, it is the actual definition of the term)
“What the president said is that only African American women are eligible for this slot, that 94% of Americans are ineligible,” Cruz said. “The way Biden ought to do it is to say ‘I’m going to look for the best justice,’ interview a lot of people, and if he happens to nominate a justice who was an African American woman, then great.”
Liberals and conservatives alike rushed to examine President Biden’s campaign promise to nominate a Black woman to the Supreme Court when the seat became available in January after Supreme Court Justice Stephen Breyer announced his intention to retire.
Although many liberals have praised Biden’s nonracist selection in the name of representation, it does not indicate an antiracist agenda is sweeping the Gum’ment. Amidst administration policies that many feel disproportionately affect Black women, it does sound somewhat hollow.
Biden so far is not considering any form of relief from predatory student loans (hey, Even I can see some shady practices here) , his support for bolstering law enforcement budgets (and enlightened™ folks seem to agree that giving the police LESS money for enforcement will somehow magically make all problems go away) , and his support for criminalizing cannabis are all burdensome for Black women.
Nevertheless, a short list of Black women has emerged, illustrating that even the most nonracist of candidates can be appointed as a judge who is going to be effectively racist in all her decisions.
As one of the presumed front-runners, Judge J. Michelle Childs is one of the first candidates the White House announced was in the running. She may be the best pick for Vice President Biden to make.
The history of her tenure on the U.S. District of South Carolina Court of Appeals seems almost anti-progressive-almost as if she rules a case based on merit, rather than social acceptance.
Labor advocates oppose Judge Childs’ proposed nomination because she has defended employers in discrimination suits. She still sentenced a man to 12 years in prison for distributing eight ounces of marijuana even though she has backed criminal justice reform.
Prospect’s Alexander Sammon reported “…Childs’s nomination would fly in the face of the very values President Biden touts”.
No matter which candidate turns out to be the nominee, this Black woman will be sitting on a radically right-wing Court.
The clear progressive favorite is Judge Ketanji Brown Jackson among the other strong contenders. Well-positioned as a judge for the U.S. Court of Appeals for the D.C. Circuit, Jackson has presided over a number of high-profile cases, including ordering Donald McGahn, former counsel to Donald Trump, to respond to congressional subpoenas (this one was a favorite, obviously) .
Jackson, an attorney who was formerly a clerk to Justice Breyer, has successfully climbed the judicial ladder three times.
Jackson has ruled favorably for unions unlike Childs. Trump’s executive orders that curtailed the collective bargaining rights of federal employees were struck down by her in 2018. Despite the fact that she rejected one settlement for 5,500 Black Lockheed Martin employees over discriminatory promotion policies –
This led Alabama’s first Black federal judge, U.W. Clemon, to oppose Jackson’s nomination, even though she is known to generally favor workers.
Jackson’s experience as a public defender clearly differentiates her from the other known candidates. Since Thurgood Marshall stepped down in 1991, the Supreme Court has had no justice with extensive defense experience.
Abbe David Lowell wrote in The Washington Post, “A single justice with real criminal defense experience might not make a numerical difference in many cases, but their presence would ensure that all perspectives in addressing fundamental rights are considered.”
Jackson may be nominated by President Biden, and progressives will get their way. Maybe Jackson’s inclusion on the Court will be groundbreaking in terms of anti-racism. The result is that regardless of who is selected, a Black woman will sit on a radical right-wing Court, potentially tying her hands in ways that President Biden’s do not.
Generally speaking, even a Jackson nomination doesn’t undo or cover up the policies of the administration that many feel continue to marginalize Black women.
In short, we might as well pick the best candidate-race and sex are probably not going to make much of a difference.