Biden must honor his commitment to appoint a Black woman to the Supreme Court

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Having a Black woman on the Supreme Court is about far more than sending a powerful message on representation and inclusion. It's about justice.


Whatever you think of the pressure exerted on Justice Stephen Breyer to retire over the last couple of years – and it has been intense – there is no question that Justice Breyer, expected to announce he’s stepping down, would be making the right choice. His retirement would be a selfless action after three decades of equally selfless service on the high court. His commendable legacy includes opposition to the death penalty and to racism in our criminal justice system.

And his departure would come at a new inflection point in our country’s long civil rights struggle, one that cries out for a justice made for this moment.

Threats to voting rights

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When Justice Thurgood Marshall took his seat on the Supreme Court, it was at the height of the civil rights movement of the 1960s. The Voting Rights Act and Civil Rights Act were newly minted. Justice Marshall, himself a strategist of the movement, arrived as the country was grappling with the legal implications of the work needed to tear down our homegrown apartheid. His 24-year tenure on the Supreme Court changed history.

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Today we are facing a backlash that threatens the voting rights progress of the past six decades. State after state is passing laws designed to suppress the votes of Black and brown citizens. At the same time, more Americans than ever before are acutely aware of the civil and human rights violations that are continually perpetrated against people of color by law enforcement, after a year of heartbreaking and high-profile killings.

President Joe Biden ran on a commitment to appoint the first Black woman to the Supreme Court. On Wednesday, White House Press Secretary Jen Psaki said Biden would stand by that pledge. And there could be no better time to have a powerful Black woman on the court as a voice for truth and accountability.

More than a message

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We are fortunate to have an outstanding cadre of lawyers and scholars who are Black women and made for this moment on the Supreme Court, as Justice Marshall was for his. Black women in the law who have been fighting for civil rights in our country, year in and year out. Black women who have worked in civil rights advocacy, or as public defenders, or in nonprofits where they have seen our justice system not just from the top down but from the bottom up – as most Americans see it. Black women in academia whose brilliant scholarship is informed by their lived experiences.

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Having a Black woman on the Supreme Court is about far more than sending a powerful message about representation and inclusion, although those things are not insignificant. At its core, it is about improving the quality of decision-making and justice that takes place there.

There is ample evidence from the business sector – where gaining a competitive advantage is studied from all angles – that demographically diverse leadership is associated with better strategic decisions and greater profitability. It stands to reason that the more perspectives are brought to the table, the more fulsome the consideration of any problem.

There is anecdotal evidence, too, that Black women on the bench inspire more trust and openness among the people who come before them. And diversity inspires more confidence among the public outside the courtroom.

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Biden must honor his commitment to appoint a Black woman to the Supreme Court

Conversely, the American Bar Association found that a lack of diversity on the bench “inhibits public trust and confidence in the courts.” Our justice system, which Alexander Hamilton famously noted has the power of neither the sword nor the purse, relies on public faith in its judgment for its influence. Without that, it will falter.

The Supreme Court needs all these benefits in this moment. And so do the American people. As a Black father of Black children, including a daughter, I will be deeply proud and moved to see the first Black woman take her seat on our highest court. I also know I won’t be alone; millions of Americans will be inspired by this reaffirmation of who we strive to be as a nation.

To President Biden, we say the country needs you to move swiftly to nominate to our Supreme Court a Black woman who will be a champion for freedom, opportunity and justice. To Justice Breyer, we offer our heartfelt thanks for decades of service and the wisdom to step aside when the time is right.

Ben Jealous, president of People For the American Way in Washington, D.C., is the former national president and CEO of the NAACP.

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