Yesterday’s announcement that Justice Stephen Breyer intends to retire from the Supreme Court brings to the forefront one of President Biden’s clearest and most important campaign promises, namely to appoint the first Black woman justice. He first made that promise in South Carolina but expanded on it in March 2020 during a debate following his victory in that state’s Democratic presidential primary.
Amplifying on why he made the commitment, he explained: “It’s required that they have representation. It’s long overdue.” He went on to say that if he were elected president that his administration would “look like the country.”
The president has delivered that kind of administration and already has a remarkable record of nominating diverse and extraordinarily well-qualified nominees to the federal district and appellate courts.
Now the president has the chance to make good on his promise about the Supreme Court and make the court look more like the country. There are a number of distinguished Black women, some already on the bench and some not, from whom the president could choose a superb nominee.
His desire to add diversity to the court is very much in line with efforts made by earlier presidents, both Republicans and Democrats. And appointing a Black woman is, as Biden rightly said, “long overdue.”
Justice Breyer had been the object of a concerted campaign to persuade him to put aside vanity and step down while the Democrats control the Senate. Progressives urged him not to make the mistake that they said Justice Ruth Bader Ginsburg had made of staying on the court too long.
Writing in The Atlantic in November, Jennifer Senior recalled Ginsburg’s recalcitrance in the face of President Barack Obama’s not so subtle entreaties early in his term for her to step down. It had, Senior wrote, “catastrophic consequences for the causes to which she devoted her career.”
President Trump’s appointment of conservative Justice Amy Coney Barrett to fill Ginsburg’s seat seemed to vindicate Senior’s assessment.
Now Breyer has given Biden and the Democrats their chance. And, for a justice so extraordinarily devoted to his vocation and to the Supreme Court as an institution, his decision should not go without notice and praise. It is never easy to walk away, especially from such rewarding and important work.
In an ironic turn of history, Breyer’s decision and the president’s chance to deliver on his bold and bracing campaign promise to nominate a Black woman to the court comes in the wake of this week’s announcement that the court will again consider the constitutionality of affirmative action in higher education admissions. That case will allow the justices to weigh in on the worth of the very kind of representational rationale that Biden rightly offered during the presidential campaign.
Biden’s promise, which conservatives may be tempted to denounce as “pandering” and an outrageous example of contemporary “wokeness,” was anything but.
It is reminiscent of a tradition in the Supreme Court nomination process dating back to the early 20th century. At that time presidents began to make nominations to ensure religious diversity on the court. They had not yet thought to pay attention to diversity in race or gender.
For decades, presidents honored the tradition of appointing a Jewish justice.
As a National Public Radio report noted, this tradition started with President Franklin Delano Roosevelt. “After Associate Justice Benjamin Cardozo, died in 1938,” the report noted, “Felix Frankfurter succeeded him on the court. And when Frankfurter retired in 1962, President Kennedy named another Jew, Arthur Goldberg, to succeed him. That’s when the term ‘Jewish seat’ began to be widely used. The tradition continued when Abe Fortas succeeded Goldberg in 1965.”
President Bill Clinton carried forward that tradition when he nominated Ginsburg and Breyer.
And over 40 years ago, Ronald Reagan said during his 1980 campaign that if he were elected to the presidency, he would break another barrier by appointing the first woman justice. He fulfilled that pledge when he nominated Sandra Day O’Connor, like Reagan a Republican, in August 1981.
Along the way the appointments of Justices Thurgood Marshall, Clarence Thomas, and Sonya Sotomayor each was accompanied by an acknowledgement of the importance of making the court look more like America.
Whether the president and his Senate colleagues can and will be able to contribute to that effort, as well as the kind of Justice they can confirm, remains to be seen.
Americans should never underestimate the determination of Senate Republicans to make up new rules to suit their partisan ends and to try to block confirmation of any person Biden names to the court.
As the lawyer and commentator Dennis Aftergut asks, “How long before Mitch McConnell says it’s too close to the midterms to confirm a Supreme Court Justice?” Or will Sen. Ted Cruz (R-Texas) or Sen. Josh Hawley (R-Mo.) echo Trump’s “big lie” and raise questions about whether the Senate should confirm the nominee of a president whose election they call fraudulent?
They may try to mobilize arcane Senate rules and procedures to delay and slow-walk the consideration of whomever Biden nominates — no matter how well qualified. Or they may try to avenge what they claimed was the unfair treatment of Justice Brett Kavanaugh, which Sen. Lindsay Graham (R-S.C.) called “the most despicable thing I have seen in my time in politics.”
But with Republicans no longer in control of the Senate, the fate of Breyer’s seat and Biden’s ability to deliver on his campaign promise will depend on that ever elusive quality — Democratic unity.
It will depend on Democrats’ skill in fighting what one Esquire magazine writer already predicts will be “a ferocious partisan affair.”
Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.), outliers among Senate Democrats in opposing filibuster reform and Biden’s Build Back Better legislation, have consistently supported his previous judicial nominees. Now, when the stakes are the greatest, they must continue to do so.
Manchin and Sinema should join their Democratic colleagues, and hopefully some Republicans, in affirming the value that the life experience of a Black woman would bring to the Court.
This is especially important at a moment when the court seems almost completely out of touch with the lives Americans lead and the values enshrined in the Constitution.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of numerous books on America’s death penalty, including “Gruesome Spectacles: Botched Executions and America’s Death Penalty.” Follow him on Twitter @ljstprof.