President Joe Biden’s plan to nominate the first Black woman to the Supreme Court will mean extra scrutiny for the way politicians and Washington insiders talk about a confirmation fight — and the first weeks underscored how it could get treacherous.
Georgetown University Law Center put a senior lecturer on administrative leave for some tweets about the upcoming vacancy that compared a male judge to a “lesser black woman.” An editor at Politico apologized on Twitter and clarified wording she had added to a guest editorial “to remove an implication that Breyer’s successor would lack some of his strengths.”
A legal writing guru published online a comparison of the opinions written by two leading contenders for the pick, then took it down minutes after a right-wing operative cited it to write that one of the judges wrote opinions that struck him as “in need of a thorough edit.”
Another legal commentator explained why an edition of his newsletter that handicapped potential picks included references to Washington legal insiders who have a view of which one was “intellectually stronger” or had more “intellectual firepower.”
That heat mostly has stayed confined to Twitter or Washington-insider media so far, as politicians and advocates who cranked up the usual Supreme Court confirmation rhetoric quickly found that Biden’s pledge created some different terrain this time. A central theme has emerged: There will be discussions about how to have discussions about race.
And a nominee hasn’t even been named yet. The spotlight likely will intensify on Capitol Hill as the country focuses more narrowly on the confirmation process, first with the selection and then through the political gantlet of a hearing and committee and floor votes, as the Senate enters a midterm election season that will determine who controls the chamber starting next year.
Tressie McMillan Cottom, a sociologist and writer who was called an “intellectual leader on Black Twitter” when she won a MacArthur Fellowship in 2020, might have summed it up when she was among those who called out the now-changed wording in the Politico article.
Cottom tweeted that “it’s about to be a long few months sigh.”
The simmering partisan debates over the past few years about race in the United States — Black Lives Matter and police funding, cancel culture on college campuses and “woke” mobs online, discriminatory voting laws, critical race theory and parents at school board meetings, affirmative action in colleges and workplaces — will have a new outlet in the supercharged partisan environment of the Senate confirmation process.
Biden has said he will nominate a Black woman with “extraordinary qualifications, character, experience and integrity,” and that it’s long overdue. Liberal advocates said in a strategy memo that such a pick will make the Supreme Court look more like the country, and add a unique experience and perspective to future decisions, especially when the country is “once again reckoning with our racist past and the ongoing systemic inequalities that it has wrought.”
Eye toward midterms
Some Republican senators already have been called out for their language and comments on the vacancy by questioning the qualifications of a Biden pick that is constrained by demographics — and the Democratic Senatorial Campaign Committee already made the connection between the comments and the midterm elections that will determine control of the Senate.
Rhode Island Democratic Sen. Sheldon Whitehouse said the selection of a Black woman would be an advantage in the confirmation process, since Minority Leader Mitch McConnell will have an eye toward midterm elections in Georgia and elsewhere.
“The last thing you want is to have a bunch of your white senators beating up on the first Black female nominee to the Supreme Court, that is not good for him winning those races,” Whitehouse said on the Talking Feds podcast.
Still, it has happened. Sen. Roger Wicker of Mississippi said in a radio interview that such a pick would be “the beneficiary of this sort of quota” that he called “affirmative racial discrimination.” Sen. John Kennedy of Louisiana told a reporter that he wants a nominee “who knows a law book from a J. Crew catalog” and who is “not going to try to rewrite the Constitution every other Thursday to try to advance a ‘woke agenda.’”
Taneisha N. Means, an assistant professor of political science at Vassar College who researches race and judicial politics, said such attempts to tarnish the reputation of Black women federal judicial nominees, “by suggesting they are inferior to other nominees and planting seeds of doubt about their credentials and qualifications” is not a new tactic.
“In fact, this is a page out of a very old playbook that is steeped in racism, sexism, and exclusion, and is often used to gatekeep access to positions of power and obstruct any possible change in the makeup or outcomes of government institutions,” Means said.
The call for increased representation in spaces that have been predominantly white, such as government and the law, has been happening since the civil rights movement, and the exact discussion about the qualifications of a potential Biden pick “is one that was had back in the late 1960s when the first Black woman, Constance Baker Motley, was appointed to the federal courts,” Means said.
Among those who pushed back against Wicker’s comments was South Carolina Republican Sen. Lindsey Graham, who touted a federal judge from his state as a highly qualified potential pick. “Affirmative action is picking somebody not as well qualified for past wrongs,” Graham said on CBS’s “Face the Nation.”
Ibram X. Kendi, the director of the Center for Antiracist Research at Boston University, said comments that equate affirmative action quotas to attacks on meritocracy were an example of a “racist logic,” because such an equation requires one to conclude that 108 of the 115 justices on the Supreme Court have been white men because they are superior.
“This is an old ideology, used against Black striving from the beginning,” Kendi tweeted. “This Black History Month is going to be instructive.”
Issue divides parties
A survey from the nonpartisan Pew Research Center found in August that racial injustice is maybe the most divisive issue along party lines. Just 25 percent of Republican-oriented respondents say greater attention to the history of slavery and racism is a good thing, with 46 percent viewing it negatively.
Among Democratic-oriented respondents, across racial and ethnic groups, 78 percent say that attention to those issues is good for society, the Pew survey found.
And another Pew survey from 2019 found 73 percent of Americans did not think colleges and universities should consider race or ethnicity when making decisions about student admissions, an issue now back before the Supreme Court and teed up for the next term, when a Biden nominee could be seated on the court.
But there was a large partisan gap on that affirmative action question: Republican-oriented respondents were far more likely than Democratic-oriented respondents, 85 to 63 percent, to say race shouldn’t be considered.
Candis Watts Smith, an associate professor of political science at Duke University who focuses on race and ethnicity’s role in shaping the American political landscape, did not express much optimism that the upcoming confirmation debate would be much of a “conversation” on racial issues.
“Conversation is a back and forth. And that’s not what we’re going to have,” Smith said. “We’ll just have two groups yelling into the void.”
Part of the minefield now is that a candidate hasn’t been named, so any comparison to other nominees comes across as a characterization of all Black women.
“It is exhausting to see people decrying Biden picking ‘a less qualified’ or ‘unqualified’ Black woman for SCOTUS, without even seeing who the nominee is,” said Deborah Archer, a professor at New York University School of Law and co-faculty director of its Center on Race, Inequality, and the Law. “You are essentially saying that you think there is literally no Black woman in this country qualified to sit on the court.”
Biden has said he would announce his nominee by the end of February.