“Presidents come and go, but the Supreme Court goes on forever.”
—William Howard Taft, 27th President of the United States and Chief Justice of the United States, 1921-1930.
During his single term in office, Jimmy Carter failed to appoint a single United States Supreme Court justice. In sharp contrast, Donald J. Trump was able to seat three judges to the Supreme Court. At the pinnacle of the legal system, the Supreme Court of the United States (SCOTUS) has the final right for review and judgment over cases passed up from lesser courts in the judicial hierarchy. As such, persons appointed to this entity have influence and sway well past the term limits of those who elevate them to this lofty realm.
Our 46th President, Joseph R. Biden has just passed his first anniversary in office, and with the retirement of Associate Justice Stephen Breyer and the opportunity to appoint his successor, he has a chance to leave his mark on American jurisprudence, well into the present millennium.
Campaign promises can be the bane of the political process (due to the difficulties in bringing all of them to fruition), and part of his rise to the presidency was due to the support of his core constituency, especially Black women. Building on his promise to craft a government that will “…look like America,” he pledged early in his campaign to sow the seeds of diversity at the apex of an antiquated legal system.
Among those applauding this possibly is local civil rights attorney Areva Martin.
“It is past time that a Black woman’s voice and perspective are a part of the decisions and opinions that shape the American legal landscape,” she says.
Minions of the far-right decry this as a form of “reverse discrimination,” a pet peeve of the GOP faithful since the mid-20th century.
To them, Biden revisits the bugaboo of preferential treatment of minorities and fear of marginalization of the White population that Trump has so ably exploited.
Strategically adept, Republicans under the George H.W. Bush administration were able to finesse the replacement of civil rights icon and the first African-American on the Supreme Court, Thurgood Marshall, with another African-American, Clarence Thomas, who was ironically Marshal’s ideological opposite. In a similar vein decades later, Trump was able to replace the champion of gender discrimination, Ruth Bader Ginsburg with Amy Coney Barrett, whose conservationism reflects her stout Catholicism (although she is curiously against capital punishment).
Political favoritism? The cry
of (reverse) racial discrimination
“It is time for a woman to sit among our highest jurists. I will also seek out women to appoint to other federal courts in an effort to bring about a better balance on the federal bench.”
—Ronald W. Reagan on
the campaign trail, Oct 15, 1980.
“Because Biden said he’s only considering black women for SCOTUS, his nominee will always have an asterisk attached.”
Georgetown University Law Center
Ronald Reagan famously proclaimed his intention to place a woman on the Supreme Court well before selecting Sandra Day O’Connor in 1981. This bit of historical trivia is apparently lost on critics of Biden’s stated intentions, like Sen. Ted Cruz (R-TX) and legal scholar Ilya Shapiro.
Martin admits a bias towards Ketanji Brown Jackson, a Harvard Law alumnae like herself. She points to Jackson’s tenure as a Washington, DC public defender from 2005 to 2007, background which will impact the future of badly needed criminal justice reform.
Jackson had already been appointed by Biden to the “second-highest court in the land,” the District Court of Appeals for the District of Columbia in September 2021, so-named because it presides over many governmental agencies, and especially the U.S. Congress. A jurist with connections to Obama (he nominated her to the powerful Sentencing Commission which administers federal court consequences associated with convictions), she has spent her career bouncing between corporate litigation and public service in addition to presiding over the court where she has earned a reputation for impartiality, and integrity.
“I think that’s really important for our entire justice system because it’s only if people understand what they’ve done, why it’s wrong, and what will happen to them if they do it again that they can really start to rehabilitate,” Jackson has said.
More than 20 individuals have been mentioned as possible nominees, and below are brief biographies of the front runners which include South Carolina district judge J. Michelle Childs (Duke University Law); Midwestern Circuit Judge of the United States Court of Appeals Candace Jackson-Akiwumi (Princeton and Yale Law), California Supreme Court Justice Leondra Kruger (Harvard and Yale Law School), and Minnesota Supreme Court Justice Wilhelmina M. Wright (Yale, Harvard Law). Even with their impeccable credentials, there is sure to be a chorus line of naysayers among GOP extremists once a selection has been made.
Known as a centrist whose moderate stance on the issues separates her from radical “hard left” factions unpalatable to those on the Republican spectrum, Candace Rae Jackson-Akiwumi, a former public defender, stated her commitment to “…demographic diversity of all types, even beyond race, plays an important role in increasing public confidence in our courts and increases the public’s ability to accept the legitimacy of court decisions,” upon her confirmation to the U.S. Court of Appeals for the Seventh Circuit in 2021. Jackson-Akiwumi has corporate experience with international law firm Skadden, Arps, Slate, Meagher, & Flom, and litigation boutique Zuckerman Spaeder. At 43, she has the potential to provide a liberal foil in the decades to come.
South Pasadena native Leondra R. Kruger is of Jamaican and Jewish extraction. With a track record that includes stints in academia, clerking for Supreme Court Justice John Paul Stevens, corporate law, her judicial opinions have promoted a push for government transparency, prevention of warrantless vehicle searches during vehicle stops, and collection of DNA samples of criminal arrestees.
Displaying a balanced overview of the legal system, she is notable for overturning the death sentence of White supremacist Jeffrey Scott Young, in the wake of two murders (one of them an Hispanic toll operator) during 1999 robbery near San Diego International Airport.
“Evidence of a defendant’s racist beliefs is not relevant if offered merely to show the moral reprehensibility of the beliefs themselves,” she wrote in a 2019 opinion, meaning that Young’s confederate and Nazi related tattoos (including the “n-word) and offensive ideology had no direct connection to the crimes he was convicted of.
Wilhelmina Wright followed in her mother’s footsteps as an early advocate for equal education. As a jurist in the Minnesota district court, appeals court, and state Supreme Court (another Obama nominee), she has a rare overview of the judicial system. Her experience includes cases involving leaking government secrets to the press, political election malfeasance, and the prosecution of rioters in the wake of George Flood’s death, along with the prosecution of ex-Minneapolis police officer Derek Chauvin, who was convicted of Flood’s death.
On the topic of heterogeneity in the judicial system, she has said “…in light of the number of highly qualified women lawyers and lawyers of color, for example, it would undermine the public’s trust and confidence in the judiciary if there were no judges who are women or judges of color. I am unaware of any type of diversity that should be excluded from the bench, provided an attorney is learned in the law and has the ethical and moral fitness to serve as a judge.
One Biden front-runner who has received criticism from liberal Democrats is J. Michelle Childs. She raises concerns among the left about her past representation of corporations against labor unions. Early in her career she paradoxically earned a reputation as an expert in employment and labor law.
Childs was also nominated by Barack Obama to her present position. While on the bench, she struck a blow for LGBT rights when she ruled in favor of two women petitioning to have their marriage (which had been performed in Washington, D.C.) recognized by the state. Intriguingly, she has garnered the support of Sen. Lindsay Graham (R-SC) in her nomination of the Supreme Court.
A key problem among Democrats is their inability to herald their successes, says Martin.
“Though the United States faces serious economic challenges amid the ongoing global pandemic, Joe Biden deserves credit for the extraordinary year of economic growth and creating more jobs in his first year than any president ever,” she notes.
“President Biden has one of the most diverse presidential administrations in history,” Martin continues. “…his commitment to elevating African Americans is evident from his selection of Kamala Harris as Vice President to Dr. Lisa Cook who was appointed to the federal reserve board. Dr. Cook will be the first African-American woman to serve on that board.”
Regardless of whom Biden selects, the liberal wing of SCOTUS will remain outnumbered. Clarence Thomas, the sole African-American on the bench, has proven to be the standard bearer for the conservative agenda.