Joe Biden is dangling a history-making promise shortly before South Carolina’s presidential primary Saturday, the first 2020 contest featuring a majority black electorate. Elect him president, Biden says, and he might nominate the first black woman to the Supreme Court.
“As president, I’d be honored, honored to appoint the first African American woman. Because it should look like the country. It’s long past time,” Biden said Wednesday about the Supreme Court. He was repeating a suggestion he made in the closing minutes of Tuesday’s Democratic debate in Charleston.
But if Biden or any other Democratic candidate wants to nominate the first black woman to the court, they would have to look beyond the pool of federal appeals court judges whom presidents have tapped for all but one of the last dozen nominees to the high court.
Only five black women are currently appeals court judges, and each of those women is 69 or older this year, according to a Federal Judicial Center database. Still, there are women who would be obvious choices from politics, advocacy groups and state and other courts.
“The field would really be wide open,” said Sheldon Goldman, a professor of political science at the University of Massachusetts Amherst and an expert on the selection of federal court judges. He said legal scholars or state attorneys general could also be choices.
Biden’s comments are reminiscent of a pledge by then-Republican presidential candidate Ronald Reagan in 1980 to nominate a woman to the Supreme Court in one of the first vacancies in his administration. Reagan ultimately nominated Sandra Day O’Connor in 1981.
O’Connor retired in 2006 but was followed by three women who still sit on the court: Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Sotomayor’s 2009 confirmation made her the court’s first Hispanic justice. Famed civil rights lawyer Thurgood Marshall, who joined the court in 1967, and Clarence Thomas, who replaced him in 1991, are the only black justices to serve.
Lawrence Baum, a professor emeritus at Ohio State who has studied the court, said one prominent choice for Biden if he wanted to nominate a black woman to the Supreme Court would be California Sen. Kamala Harris, whose own bid for the Democratic nomination made her more widely known nationally. Biden and Harris, who was previously California’s attorney general, tussled memorably on the debate stage, but Biden also called her a “solid person, loaded with talent.”
It has been some time, however, since a senator became a Supreme Court justice. Sherman Minton, a Democrat from Indiana, served as a justice from 1949 to 1956, and was the most recent of 15 men who have been justices as well as senators.
Another potential choice: Judge Ketanji Brown Jackson, who was considered a possible Supreme Court pick for President Barack Obama after Justice Antonin Scalia died in 2016. Obama instead chose Merrick Garland, whose nomination was blocked by the Republican-controlled Senate.
Jackson wouldn’t have to travel far for a job. She’s a judge in Washington but in district court, the lowest-level federal court. Like six current justices she attended Harvard Law School. The other three attended Yale. And she was a clerk for Justice Stephen Breyer before eventually being nominated to her current position in 2013 by Obama.
State Supreme Courts might be another place to look for nominees.
The pool of African American women on those courts is small, but they include Leondra Kruger in California, a graduate of Harvard and Yale Law School and former clerk to the late Justice John Paul Stevens, and Anita Earls in North Carolina, a Yale law graduate who served in the Clinton administration. Then there are women such as Sherrilyn Ifill, the head of the NAACP Legal Defense and Educational Fund. All three are on a list of potential Supreme Court nominees compiled by Demand Justice, a liberal group.
Baum, the Ohio State professor, said it’s unclear what effect Biden’s comments might have on voters. It’s also unclear whether other Democratic candidates might follow his lead in talking more about the Supreme Court. President Donald Trump found during his 2016 campaign that releasing lists of his potential Supreme Court nominees helped him with conservatives skeptical of his candidacy.
But for Reagan, Baum said: “The pledge to nominate a woman probably didn’t have much effect on voters at all.”