Activists prepare to cheer — and fight, if necessary — for a Black female Supreme Court nominee

Black women activists, buoyed by news that President Biden will nominate a Black woman to replace retiring Justice Stephen G. Breyer on the Supreme Court, say it's long overdue and that they are mobilizing to make sure the historic opportunity becomes reality.

"I'm excited — and everybody I know is excited," Melanie Campbell, president of the National Coalition on Black Civic Participation, said Thursday after Biden stated his commitment at a White House news conference. "Even though we've had people who were ready, who had the qualifications and the exceptional resumes, there's never been a Black woman. It's well past time, right?"

That excitement is also being channeled into plans to rally support among Black women and allies to help the eventual nominee, Campbell said.

"There's always a fight with nominations. Hopefully we won't have to, but Black women are mobilizing in various ways to help the president with this nomination," she said.

When Biden made the pledge to nominate a Black woman to the high court during a debate in South Carolina in February 2020, Campbell said, "it was refreshing to hear this candidate, who needed Black women's vote, understand our power and our role in progressives being elected."

Breyer's retirement renews focus on the Black female jurists who could replace him

Rep. Joyce Beatty (D-Ohio), chairman of the Congressional Black Caucus, also remembered that moment. "I will never forget how meaningful it was to hear then-candidate Biden announce to the world that he intended to appoint a Black woman to our nation's highest court, should there be a vacancy during his presidency," Beatty said in a statement Wednesday. Beatty said she would "continue to push … to ensure that the President upholds his promise to the American people and that the Senate confirms a Black woman to the Supreme Court without any unnecessary delay."

House Majority Whip James E. Clyburn (D-S.C.) pushed Biden to make the announcement in the Palmetto State, where Black women make up a majority of the Democratic electorate. Biden's strong showing in the state's primary quelled concerns about his viability after poor performances in New Hampshire, Iowa and Nevada.

Campbell organized petitions and letter-writing campaigns in 2010 and 2016, urging then-President Barack Obama to nominate a Black female jurist. He instead tapped Elena Kagan, a former solicitor general and dean of Harvard Law School, who was confirmed in 2010, and Merrick Garland, a chief judge of the U.S. Court of Appeals for the D.C. Circuit, who was denied a hearing or vote on his nomination by then-Senate Majority Leader Mitch McConnell (R-Ky.).

In 2009, Obama appointed Justice Sonia Sotomayor, who is of Puerto Rican descent, as the first woman of color and first Hispanic on the court. Five women have sat on the court in its 232-year history.

Campbell, who also is the convener of the Black Women's Roundtable, a network of nonpartisan activists around the country who register and mobilize Black voters, said Black women have earned a seat on the high court through their steadfast participation in elections, turning out in high numbers to support Democratic candidates.

Nominating a Black woman for the Supreme Court would be the second historic choice for Biden, who chose Kamala D. Harris, the first woman and Black and Asian American, as his running mate.

Janice Mathis, executive director of the National Council of Negro Women, one of the groups that joined in Campbell's lobbying campaigns during the Obama administration, said she expects Biden to keep his word but is concerned about opposition from "those who don't want to see a Black woman on the Supreme Court."

Some conservatives already are criticizing Biden, claiming that he is focusing on race and gender over qualifications.

On Wednesday night, Ilya Shapiro, executive director and senior lecturer at the Georgetown Center for the Constitution, tweeted the name of an Indian American candidate who he said "objectively would be the best pick." But he added that he "alas doesn't fit into latest intersectionality hierarchy so we'll get lesser black woman."

Following a backlash, Shapiro deleted the comment and apologized for what he described as an "inartful" tweet.

Mathis said she and other women are prepared to organize against efforts to block a Black female nominee. "We're going to mobilize and educate people who feel the same way we do and make sure they know what's happening so they can be in touch with their representatives," she said.

Biden promised a Black female justice. Reagan made a similar pledge.

Nadia E. Brown, a professor of government and director of women and gender studies at Georgetown University, said Biden's nomination of a Black woman to the court could energize the Democratic base ahead of this year's midterm elections. She noted recent polls that show disillusionment with Biden among Democratic voters, and Black activists have leveled harsh criticism at him for being unable to get voting rights legislation passed. Earlier this month, voting rights groups representing Black, Latino and Asian American communities boycotted what was billed as a major voting rights speech by Biden in Atlanta, where he called out Republicans for continuing to block federal voting protections.

The Supreme Court nomination would show "the Biden administration's commitment to Black voters, that they recognize that Black voters are the ones that took them to the White House, help them to get there. And now that they know that they're going to be key to making sure that the Biden agenda has a chance at passing," Brown said.

LaTosha Brown, co-founder of the Georgia-based Black Voters Matter, was one of the activists who skipped Biden's speech because she doesn't think he has been forceful and focused enough on getting voting rights legislation passed. She said it will be important for him to choose a Black woman "who has a strong depth of understanding, knowledge and support for voting rights and civil rights in this country."

"What I'm hoping is that he has the courage to make a bold pick, not someone that will appease the Republicans," she said. "I am serious. I think if there's any point in time that we needed a Thurgood Marshall, it's now.

"Listen, her being Black isn't good enough," Brown continued. "We need somebody with a depth of civil rights and voting rights experience in light of this attack on democracy right now." She cited Sherrilyn Ifill, who recently stepped down as the president and director-counsel of the NAACP Legal Defense and Educational Fund, whose name has been mentioned along with several Black female judges.

Judith Browne Dianis remembers watching television in tears as Clarence Thomas was confirmed as a Supreme Court justice in 1991. She was about to graduate from Columbia Law School, and she vowed that she would not become a member of the Supreme Court bar as long as Thomas sat on the court.

In addition to the allegations of sexual harassment against Thomas, "there was also a sense and a recognition that he could not fill the shoes of Justice Marshall because he had no appreciation for civil rights," she said.

Marshall, a civil rights activist and founder of the NAACP Legal Defense Fund, was the first Black justice. He served from 1967 to 1991.

But if a Black woman were to be seated, Browne Dianis said she would "strongly reconsider" her 30-year protest.

Browne Dianis, a civil rights lawyer and executive director of the Advancement Project, said even though conservatives would maintain a 6-to-3 advantage, a Black woman on the panel would make a difference. "A Black woman on the bench will bring her experience, her sense of justice and fairness, her sense of the history of this country and the principles of the Constitution in ways that will be different from the other experiences that are sitting there today," she said.

A strong liberal voice also could add value to the body's discussions, deliberations and decisions.

"It makes a difference because of the questions that will be asked of lawyers who are standing in front of the court. It makes a difference, too, because there are deliberations and there are conversations that happen behind closed doors between justices in which there are important lessons that get learned in those rooms," she said. "And lastly, we always know, like Justice Sotomayor is one of them, that a good dissent is important because it puts a marker down around these issues and it gives us the lessons of how we really should be interpreting the law."

Although some Black supporters at the time argued that once on the court Thomas, who grew up in the segregated South, would be an advocate for addressing historical and ongoing discrimination, Browne Dianis said that Thomas, who was appointed by President George H.W. Bush to replace Marshall, "has not represented Black folks in terms of an acknowledgment of civil rights and the unconstitutional wrongs that have been thrust upon Black people."

Elevating a Black woman to justice "is the moment to right that wrong of him being appointed to the Supreme Court, or at least to balance it out," she said.

This article was originally published by The Washington Post on January 27, 2022.