The Supreme Court is in the midst of a legitimacy crisis. Its public approval is declining and could get worse with the controversial and partisan decisions expected to come down this term. Against that backdrop, Justice Stephen Breyer’s decision to retire offers both parties an opportunity to begin the slow work of repairing the court’s credibility.
As an American, a lawyer, and a Black woman, I am thrilled that President Biden has re-committed to nominating a Black woman to the Supreme Court. The president has already made history with the racial, gender, and professional diversity of the judges he has nominated to lower federal courts. This Supreme Court nomination is an opportunity for him and for Senate Democrats to continue their progress towards achieving a federal judiciary that reflects the American public.
But this nomination also is an opportunity for Republicans. This nomination will not change the court’s political ideology, at least not in the short term. Regardless of the nominee, Republicans will continue to benefit from a hyper-conservative court as a result of having packed the court during the Trump administration.
The opportunity for Republicans lies in two areas. First, GOP senators have a chance to prove that they mean what they’ve said about diversifying the federal bench. Second, provides them a chance to improve the chances that ordinary Americans will perceive upcoming Supreme Court decisions as legitimate.
During the previous administration, Republican senators worked with President Trump to confirm 234 people to the federal bench – 84 percent of whom were white and 76 percent of whom were men. This lack of diversity compounded an already un-diverse federal judiciary.
Our Supreme Court has never reflected the diversity of the public it serves. For most of our country’s history, it has been uniformly white and male. There have been 113 Supreme Court justices. Only five have been women, and only three have been people of color. This utter lack of diversity undermines the court’s credibility as a democratic institution. The question before us is how many senators will help address this crisis.
Without changing the political direction of the court, this nomination is an opportunity for Republican senators to defy their caucus’ recent actions and demonstrate their support for diversifying our highest court. Sen. Lindsey Graham, the top Republican on the Senate Judiciary Committee, signaled a commitment to greater diversity when he said, “put me in the camp of making sure the court and other institutions look like America.” I hope his colleagues will join him in this sentiment.
Biden is reportedly lobbying Republican senators to ensure that the nominee gets more than a purely party-line vote. It remains to be seen how successful he will be. Some Republican senators have lambasted even the president’s commitment to nominating a Black woman.
Graham, who is now speaking out in favor of one potential candidate, implied last week that the eventual nominee may get zero GOP votes. Democrats “have the power to replace Justice Breyer in 2022 without one Republican vote in support,” he said, adding, “elections have consequences.” Yes, elections do. So do Senate votes, and not just for the outcome of the vote — for the way it could bolster the court’s legitimacy.
The Supreme Court is in many respects, the most powerful branch of government right now. And yet, it has no enforcement mechanism of its own. It relies on public trust and support to enforce its decisions. The court’s eroding legitimacy, exacerbated by its persistent failure to reflect the American public, undermines the court’s effectiveness as an institution, one that we all rely on as members of this constitutional democracy.
As a Black woman, I have never looked at the Supreme Court and been able to see myself or my lived experience reflected back. In recent years, I have found myself rapidly losing faith in a court whose justices do not represent me and yet whose decisions increasingly disproportionately impact people like me.
The Supreme Court has gutted the Voting Rights Act, blessed partisan gerrymandering, and unleashed dark money into our elections. Our elections look fundamentally different today than they did a decade ago, and this is in large part because of the Supreme Court.
The combined impact of the court’s decisions on these issues is disproportionately felt by people of color, as states pass laws laser-focused on suppressing our voting rights and gerrymander maps to minimize our impact at the ballot box.
The Supreme Court is poised to wreak even more havoc to reproductive rights this year, if it overturns Roe v. Wade, as many expect it will. This would have devastating consequences for millions and millions of people. It would be particularly devastating for people of color, who already experience disproportionate difficulty in accessing abortion services.
The nomination and confirmation of one Black woman justice will not change these realities. It will not change the Supreme Court’s current conservative agenda. However, it will impact how people like me perceive the court.
Justices inevitably bring to their jobs their life experiences. Right now, when the justices sit down to deliberate on cases, my lived experience is not reflected at that table. As the court settles on decisions that will shape my life, my lived experience is left out of the room.
Adding a Black woman to the court will mean that my lived experience, and those like mine, is part of the conversation when the justices deliberate. When the court does issue its decisions, however much I might disagree with them, I’ll know that someone like me was involved. It will impact how I perceive the court and its decisions.
Biden plans to announce the nominee by the end of February. How that nominee is subsequently treated by the public, in the press, and by the Senate will say a lot about where we are as a country — and about how people view our highest court. I implore senators to think beyond politics when they consider how to vote on this historic nominee. A party-line vote on her confirmation will not affect the outcome, but it will affect whether the legitimacy of the court is further eroded.
Already we see racist remarks being made about Biden’s commitment to nominate a Black woman and about potential nominees. Such remarks underscore the racism and oppression that Black women have and continue to face in this country. And they underscore why we need a diverse Supreme Court, with justices who understand from their own lived experiences the racism that still permeates our laws and legal system.
I would hope that all senators would denounce this racist rhetoric and celebrate the historic nature of this nominee. I know I will be watching and listening as the confirmation process plays out in the coming weeks.
The Senate has confirmed dozens of lower court judges with bipartisan votes over the past year, including Ketanji Brown Jackson, who was confirmed to the U.S. District Court for the District of Columbia just last June. GOP Senators Graham, Susan Collins and Lisa Murkowski joined their Democratic colleagues in that vote. The upcoming confirmation vote for Biden’s eventual nominee is another opportunity for senators to come together across the aisle to move our country forward.
This nomination will not cure the Supreme Court’s legitimacy crisis. We need to reform the court to do that. On the other hand, Republicans can accentuate the crisis if they choose to vote against this nomination and in favor of denying lived experiences like mine a seat at the table of our highest court.
As I brace for the Supreme Court to hand down decisions this year that impact my reproductive rights, my environment, and my government, I am at least encouraged that starting next term, I will see someone on the court who looks like me. And I’ll remember how many senators helped put her there.