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This nomination process is already highlighting many ugly truths about America: how slow this country is to put women of color in powerful positions.
BY. Jameelah Nasheed
From the 1789 appointment of John Jay, the country’s first Supreme Court chief justice, until the 1967 confirmation of Thurgood Marshall, a Black man, every justice on our nation’s highest court had been a white man. That’s approximately 178 years. And until the 1981 appointment of Sandra Day O’Connor, every justice had been a man. Here we are in 2022, 233 years since the creation of the U.S. Supreme Court, and not a single Black woman has had a seat.
Still, as soon as President Biden announced his plans to nominate a Black woman to replace retiring justice Stephen Breyer, attempts to delegitimize this nameless, faceless nominee quickly began. Markers of identity have long been considered key factors in selecting Supreme Court justices. (Take the tradition of designating seats for justices of certain faiths, specifically, a “Catholic seat” and a “Jewish seat.”) But now people are taking aim at the very idea of a Black woman justice before we even learn who she is.
This nomination process is already highlighting many ugly truths about America: how slow this country is to put women of color in powerful positions; how quickly they’ll be dismissed for moving into those spaces; and how incapable the Biden administration seems to be at distinguishing between shallow and meaningful representation. Biden’s pledge to nominate “a Black woman” to the Supreme Court (and as his vice president) comes off as tokenizing and strange, flattening the individual perspective, lived experience, and accomplishments of the possible nominees. It feels like playing for a headline — as if they just want credit for nominating a “first,” whoever it is. The Biden White House could have simply nominated a qualified, talented Black woman jurist for this role; instead, it set her up to be unfairly smeared as an “affirmative action” pick.
For many of our country’s leaders, being American is synonymous with being white. During a recent news conference, Senate Minority Leader Mitch McConnell dismissed concerns about Republicans blocking a major voting rights bill, saying, “If you look at the statistics, African American voters are voting in just as high a percentage as Americans.” The clear implication of those words is that white is the default: the default voter, the default member of Congress, and, for centuries, it’s been the default Supreme Court justice.
Currently, there’s one Black Supreme Court justice, Clarence Thomas, and he’s only the second Black person to hold the seat. Justice Thomas, who was nominated by George H.W. Bush and confirmed in spite of sexual harassment allegations made by his former employee, lawyer Anita Hill, is, according to NPR, the most conservative justice since the 1930s. Keeping in mind that a significantly higher percentage of Black people vote Democrat vs. Republican, it’s no surprise that, for many of us, Thomas doesn’t feel like “representation.” He for sure doesn’t represent my politics and beliefs of equality and bodily autonomy.
That’s why Biden’s declaration to name “the first Black woman ever nominated to the United States Supreme Court” falls short. It’s dismissive of the reality that being Black and a woman isn’t enough, even for many Black women. If the nominee is not someone who will be an advocate for the well-being and advancement of Black women — a group that has had zero representation in this court since its creation — this selection, although historic, will be a disappointment. As author, folklorist, and anthropologist Zora Neale Hurston once said, “All my skinfolk ain’t kinfolk.” (However, some of the possible nominees who have been floated, such as federal appeals judge Ketanji Brown Jackson, a former public defender, are promising.)
Biden’s framing of this nomination feels like an opportunistic, self-serving gesture. It comes as we continue to wait for action on issues important to Black voters, including the passage of voting rights legislation and student loan debt relief (Black women carry disproportionately more student loan debt than any other demographic group). It also invites an unnecessary additional layer of scrutiny for the future nominee. Sen. Roger Wicker (R-MS) has already said that whoever Biden selects will be a “‘beneficiary’ of affirmative action.”
Black women are constantly questioned about our qualifications because of racism and sexism. There’s no doubt that the nominee will be subject to a level of interrogation that a white, male colleague wouldn’t be. But by leading with a focus on the nominee’s race and gender, Biden has exposed her to more criticism than she already would have received just for existing in this country as Black and a woman.
According to a recent ABC News/Ipsos poll, 76% of respondents believe Biden should “consider all possible nominees.” For most of our country’s history, “all possible nominees” have not been on the table, but now that a Black woman stands to benefit, people are concerned. For too long, whiteness has been a qualification for any and every position of power in our country. By that standard, it is white male judges whose records and qualifications should be further examined. Because I can guarantee that most, if not all, Black women who have made it far enough to be considered for the Supreme Court have had to overcome more systemic obstacles than a majority of the justices who’ve served before them. In our racist country, the records of Black women have to be flawless to even be considered. So we can rest assured that Biden’s nominee will be selected because of her merit — she’ll just happen to be a Black woman.
Black women deserve to be in each and every space that has been dominated by people who don’t look like us. It is important to have our nation’s laws be decided by justices from different races, faiths, genders, upbringings, and socioeconomic backgrounds. But our race and gender aren’t props. We aren’t interchangeable. And describing us that way just empowers the racist people who will always consider our admittance into white spaces as something that is given to us, rather than earned by us.
This article was first published in Teen Vogue The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Araweelo News Network.
Jameelah Nasheed is an op-ed columnist for Teen Vogue. She covers news, politics, race, and culture. Follow her on Twitter.