(A part of this piece appeared in the Wall Street Journal)
Joe Biden’s loudly proclaimed desire to appoint a Black female to the Supreme Court is, well …. very recent. Janice Rogers Brown had been the first Black female on the California Supreme Court for seven years when President George W. Bush nominated her to the DC Circuit Court in 2003. Senator Joe Biden filibustered against her nomination. When she was nominated to that Court again in 2005 she was confirmed with Biden voting against. Bush was interested in nominating this very well qualified. Black female judge to the Supreme Court. Biden told Bush he would filibuster her nomination, so Justice Alito was appointed instead. Biden and other Democrats did not want a well qualified Black female Justice, who was also a conservative, on the Court.
There have been 120 justices on the Supreme Court, including 17 Chief Justices. 114 of them have been white men, two black men and four white women. It will be a great thing to have a black woman on the Court.
I am no fan of Identity Politics and I wish President Biden hadn’t announced ahead of filling the vacancy created by the retirement of Justice Breyer that he would nominate a black woman. It is true that President Reagan promised he would appoint a woman to the Court before he nominated Sandra Day O’Connor, but a trial judge would not let a prosecutor get away with such announced racial criteria even for selecting a jury in a criminal case. Race may be in the prosecutor’s mind, of course, but other reasons must be given.
FDR appointed Justice Frankfurter to replace Justice Cardozo, as JFK appointed Justice Goldberg to replace Frankfurter. Neither President announced they were filling the “Jewish seat” on the Supreme Court. President Biden could have made his point as effectively but less demeaningly to the ultimate nominee and the Court, by simply making the appointment in June.
Black women represent a small but increasing percentage of American lawyers. Without doubt, many of them are qualified to serve on the Court, as evidenced by the qualifications of the possible nominees put out for public discussion.
Among those candidates a most persuasive case is made by Rep. James Clyburn (D-SC) for the appointment of Judge J. Michelle Childs, a federal district court judge from his home state. She is also supported by Republican Senator Lindsay Graham, virtually guaranteeing confirmation in the closely divided Senate. Rep. Clyburn argues that she attended excellent large public universities on scholarships, earning her undergraduate degree at the University of South Florida and law and business degrees at the University of South Carolina. The other candidates all are products of Ivy League schools. All of the current justices are graduates of Ivy League law schools, except Amy Coney Barrett, who attended Notre Dame Law School. A little more diversity of life experience might be a good thing to bring into those conferences.
Among current justices, only Justice Sotomayor has experience as a trial court judge. While she has pending a nomination to the Court of Appeals for the D.C. Circuit, Judge Childs’ 11 years of judicial experience is as a District Court trial judge. I am perhaps biased as a retired trial judge, but it’s a good thing for some of those sitting in that Supreme Court Justices’ conference room to have a good feel for how all those cases get there.
I expect that Judge Childs’ views on controversial legal issues will seldom comport with my own. However, a Democratic President and a Democratic Senate are going to have their way. See Replacing RBG. In the absence of Ivory Tower indoctrination, Judge Childs seems the most likely to be comparatively moderate. President Biden himself attended a state law school and owes a deep political debt to Rep. Clyburn for salvaging his Presidential candidacy. I hope Judge Childs is the nominee.