As published in The Hill on February 7, 2022

Biden's pledge atones for decades of shortchanging Black women

For nearly 200 years, women were deliberately excluded from seats on the Supreme Court of the United States. The curse was lifted when Sandra Day O’Connor became the first woman to join the court in 1981. Her barrier-breaking ascension was possible because a candidate promised to appoint a woman if he won the presidency.  

President Ronald Reagan was celebrated when he made good on that pledge. Why is it so hard to fathom that President Biden would also uphold his campaign-trail commitment, and similarly advance respect for the court, by appointing a Black woman to that hallowed post? 

As California’s Governor, Reagan was not known for advancing women’s rights. His appointments to state courts were almost entirely white men; he did not support the Equal Rights Amendment. By contrast, his opponent, Jimmy Carter, named more women to federal courts than all presidents before him, combined. As the contrast in their records gained more scrutiny, Reagan worried that his appeal to women was slipping. But Reagan also knew how to seize an audience. His promise to appoint a woman to the court was a bold and astute political move.  And when he delivered on that pledge, the country rejoiced. It mattered little that for subsequent Supreme Court vacancies, Reagan appointed only white men, despite a long list of highly qualified women. 

Black women have been on the shortlist longer than is commonly known. Indeed, Amalya Kearse, an African American whose credentials exceeded many who were confirmed to the court, was on Reagan’s mind his entire presidency. She appeared on his shortlist for the O’Connor seat, and again for the seat that went to Anthony Kennedy in 1988 (after Robert Bork tanked in the Senate and Douglas Ginsburg withdrew).

Kearse was one of three African Americans in her Wellesley College freshman class. She attended law school at the University of Michigan, one of only eight women, graduating cum laude in 1962. When Kearse began her job search, one Wall Street firm candidly confessed why it had rejected her: “God I wish you were a man.” She was not deterred. She landed a job at New York’s Hughes Hubbard & Reed and became the first female and first African American partner in 1969. She achieved that position, said her colleague, “not because she is a woman, not because she is a Black, but because she is so damn good.” When Carter nominated Kearse for the U.S. Court of Appeals for the Second Circuit in June 1979, the Senate confirmed her by voice vote. She became the first woman of color there, and only the second African American after Thurgood Marshall. 

For most of our national experiment, women like Kearse had no chance. Black women have been denied status as citizens, barred from suffrage, caricatured in film, and segregated in schools. Yet, like Kearse, they have climbed mountains.  

Another summit awaits — a seat on the highest court in the land. The Black women who have been identified as potential candidates are far more qualified than many of the justices who have served both before and after O’Connor’s historic appointment. Biden should not take the bait of those who worry his pledge excludes white men any more than he should denounce Reagan (or even Trump) for considering nominees outside that group.  

Although Biden did little to ensure a fair hearing for Anita Hill, who testified during Clarence Thomas’s nomination to the court, he can begin the long road toward redemption today. Had Thomas’s nomination foundered on the shoals of Hill’s accusations that he sexually harassed her, Kearse may well have been President George H.W. Bush’s next choice. Her name was floated as a “solution” to the Hill/Thomas controversy. Kearse was shortlisted again by President Bill Clinton for the seat from which Justice Breyer soon will retire. Kearse remains a judge in senior status on the Second Circuit. 

Biden, like Reagan, thought about politics when pledging a historic appointment to the court. Although presidents before them clung to the status quo on gender and race, the court’s current legitimacy rests on toppling needless barriers to public service. We are only 40 years removed from a time when vast sections of our democracy were denied the opportunity to serve as justices at the highest level. They were not then, nor are they now, “lesser” because they did not fit the old mold. 

A Black woman on the Supreme Court would enhance the court’s legitimacy by shaping the court to reflect the public. She will inspire the next generation of Black girls to become lawyers and judges and to reach for the highest heights in all professions. There is no novelty in selecting a highly qualified nominee. There should be no surprise, indeed there should be a celebration, that the nominee inches us ever closer to a court whose life experiences mirror the nation’s. 

Renee Knake Jefferson is the co-author of "Shortlisted: Women in the Shadows of the Supreme Court" and the Doherty Chair in Legal Ethics at the University of Houston.

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The Women Reported to Be on Biden’s Shortlist

J. Michelle Childs, South Carolina US District Court Judge

Tiffany P. Cunningham, Federal Circuit Court of Appeals Judge

Anita Earls, North Carolina Supreme Court Justice

Arianna J. Freeman, Third Circuit Court of Appeals Judge

Ketanji Brown Jackson, DC Circuit Court of Appeals Judge

Candace Jackson-Akiwumi, Seventh Circuit Court of Appeals Judge

Leondra Kruger, California Supreme Court Justice

Sherrilyn Ifill, President of the NAACP Legal Defense and Educational Fund

Eunice Lee, Second Circuity Court of Appeals Judge

Melissa Murray, NYU Law Professor

Holly A. Thomas, Ninth Circuit Court of Appeals Judge