Intentionality crucial to high court selection
This article was published by the Cincinnati Enquirer on April 4, 2022. You can find the original link to the article here.
On Feb. 25, 2020, during a Democratic primary debate in Charleston, S.C., Joe Biden pledged to nominate a Black woman for the United States Supreme Court. Of course, it was politically motivated. Biden’s bid to be president was in desperate need of a booster shot. An enthusiastic Black vote in the South was essential, and he knew it.
The injection of race may have made this political promise sound unusual, but it is really no different than an assurance to cut taxes, raise the minimum wage or build a wall. Even promising to nominate a woman is not new. In 1980, then-candidate Ronald Reagan pledged to nominate the first woman to the Supreme Court. President Trump made a similar promise in September 2020 at a North Carolina campaign rally.
If we can divorce ourselves from the politics, this example can highlight our own opportunities to close the racial gaps between us. There are people who innocently ask why race and gender are even a part of this conversation. The basic answer is that representation matters. Varying perspectives born from different lived experiences matter. Representation matters to the quality of deliberations and to the breadth of insights. Representation also begets more representation and does its part to slowly close the divergent outcomes we see along racial lines. If these reasons seem insignificant to you, it may be because you have always felt represented. Many have not.
The issues of race in our nation are complex and multifaceted and will likely take generations for us to heal. Although there are no microwaveable answers, there are things we can do. Single acts don’t solve our problems, but they do advance our espoused common interest in the pursuit of the promise of America for everyone. Biden’s Supreme Court nomination illuminates an actionable path for those of us looking for practical actions we can take.
The fundamental lesson is that intentionality is critical because the inertia of our history is real. Biden made representation a part of his decision criteria. Without his intentionality, would a president have nominated a Black woman to the Supreme Court? There are no signs to suggest they would.
Hannah Brenner Johnson, in her book, "Shortlisted: Women in the Shadows of the Supreme Court," identifies only nine women ever even considered. And before Biden’s nominee, only one of those women was Black. And there are not many opportunities. The average length of service by a justice is 16 years. The outcome is, at most, one to two seats per generation.
We also do not have much momentum to suggest increased equality is coming soon. The federal court bench is not the only source of Supreme Court justices, but it is a reasonable proxy to evaluate the pipeline. After all, eight of the nine active members of the Supreme Court spent time on the federal bench. In this case, the pipeline resembles more of a trickle when you realize the number of Black females ever to serve as a federal jurist is less than 2% (70 of the 3,843).
"Most of the Black women who have served as federal judges to date have done so at the district court level. Only 13 have served at the appellate court level – that is, the powerful regional courts that are one step below the Supreme Court," a Feb. 2 article from the Pew Research Center said.
Sure, a president could select a Black woman. Yet, without intentionality, a Black woman on the Supreme Court is statistically improbable.
I realize this race and gender specific action is not the right "intervention" in every case. Sometimes the situation will call for a "well-executed" Rooney rule. Where you commit to interviewing at least one diverse candidate. Other times the best approach will be a transparent and intentionally inclusive hiring process. Yet there are times, based on our aspirations as a nation (or an organization, company, community, church, etc.), that a promise like Biden’s is a tremendous opportunity. In this case, intentionality uncovered a plethora of Black women with at least equal credentials to those who are currently serving on the court.
A Black woman on the Supreme Court will not solve our challenges with race. But representation will make our nation better and provide hope to those who often see little of it. This is also an example to illustrate the power of intentionality and to highlight the realization that it would not have happened without it.
Finally, this promise is a public demonstration of our stated intentions to fulfill the founding promise of America. No matter what you think of President Biden, this is a race and gender win for our nation. It has been a while since we could say that.