Joe Biden vows to nominate a Black woman to be a Supreme Court justice by the end of the month. He should live up to that commitment, of course, but he should also name a Black female jurist with experience as an elected official or at the very least with a prominent role in government and politics.
The jurists reportedly on Biden’s short list seem brilliant, accomplished, and interesting. Ketanji Brown Jackson from the D.C. Circuit has all of the Harvard pedigree and legal acclaim we’ve come to expect from Supreme Court nominees and is, intriguingly, Paul Ryan’s sister-in-law. (Her husband’s twin brother is married to the former House speaker’s wife’s sister. Ryan testified on her behalf and surely would again.) Leondra Kruger, whose late father was Jewish, worked for George W. Bush’s solicitor general, Paul Clement. He raves about her, as do all Democrats who have worked with her, like former solicitor general Neal Katyal. Kruger serves on the California Supreme Court. J. Michelle Childs of South Carolina has the support of Biden benefactor Representative James Clyburn and, it seems, Senator Lindsey Graham, who are both from her home state. She sits on the federal district court in the Palmetto State and has been nominated for the Fourth Circuit Court of Appeals. She’s widely lauded but has been getting dinged by liberals for her corporate work and appellate reversals on criminal cases.
No one can say these women and others who have been mentioned are unqualified, and no one can say with a straight face that other presidents haven’t used race and ethnicity in their selection of a justice. (Regional diversity used to be a significant criterion, too.) Whether Biden should have declared from the get-go that he would only choose a Black woman is a matter for armchair debates. Still, you don’t have to embrace “intersectionality” to believe that having a Black woman on the Court, just like in the vice presidential mansion, is an excellent thing for the country.
But, as impressive as these possible nominees are, they are primarily in the vein of recent Supreme Court nominees from both parties: They come from the bench. They’ve risen in the world of appellate courts. While that offers some benefits for a newbie justice—a familiarity with weighing precedent, writing opinions, and so on—it is not in keeping with the historic tradition of putting politicians and cabinet secretaries and prominent figures on the Court. For most of the country’s history, presidents did not elevate jurists to the Court, and those they did had something else on their resume, like having served as governor. Only in the past 50 years has appointing a judge become de rigueur among presidents of both parties. “The nation has lost one kind of Justice who was very nearly a constant on the Court for 170 years: the politician who joins the Court after distinguished and prominent service in public life,” write the legal scholars Robert Alleman and Jason Mazzone.
They’re thinking of the governors, senators, members of Congress, attorneys general, secretaries of state, even former presidents who have served on the Supreme Court. They’re thinking of men—and, alas, they were all men—who had the public-mindedness and confidence to leave the federal bench to go into the executive branch and then come back. Fred Vinson left the D.C. Circuit, the nation’s second-highest court and the launching pad for today’s Supreme Court, to join Franklin D. Roosevelt’s administration as the director of the Office of Economic Stabilization. Vinson rose during the New Deal and Fair Deal to become secretary of the treasury under Harry Truman, who appointed him to the Supreme Court. Thurgood Marshall, the legendary civil rights lawyer, was appointed to the Second Circuit Court of Appeals by John F. Kennedy, left that post to become solicitor general under Lyndon Johnson, and then was nominated to the Supreme Court. Others just had an amazing array of legislative and executive experience before joining the high court. When Theodore Roosevelt appointed William Moody to the Supreme Court in 1906, he had served four terms in the U.S. House, then as secretary of the navy and attorney general. He became one of the most vigorous trustbusters of the era and fought for the enfranchisement of Black Americans. As Norman Ornstein wrote when Stephen Breyer was appointed, “Nothing could do more to foster appropriate relations and harmony among the branches, and to create a better process of judicial decision-making, than to fill the Court’s vacancy with a savvy and experienced Member of Congress.”
Sure, we’ve had bad politicians on the Court and good ones, too, just as we’ve had bad plain-vanilla jurists and good ones. But when liberals are outnumbered 6–3, as they are now, Biden would be wise to consider a justice who is not only intellectually gifted, ideologically compatible, and collegial in a general way, like the Black women who have been mentioned to fill Breyer’s seat. The new justice should also have the proven powers of persuasion that might allow her to pick up the votes of a couple of conservative justices here and there. That won’t be done easily given the conservative moorings of the Court’s Republican appointees. But it’s not impossible. Justices Neil Gorsuch and John Roberts joined the liberals to take a surprisingly expansive definition of the 1964 Civil Rights Act and rule that it bars discrimination against gays, lesbians, and transgender individuals. Indeed, Gorsuch wrote the opinion. The possibility of more such victories grows with the appointment of a Democratic political figure on the bench. Even if there aren’t flat-out wins, reducing the margin of conservative victories from 6–3 to 5–4 will help blunt their impact. Experiences and empathy with other branches of government could only help. As my colleague Garrett Epps notes, Breyer brought a more nuanced view of Congress from having been a staffer there. I’d ask whether someone with really formidable state, federal, legislative, and executive branch experience would help too.
Let’s consider some history that points to why politicians did well on the Supreme Court and why presidents chose them. Elected officials used to be standard fare. Today, there are none. The last elected official appointed to the Court was Sandra Day O’Connor. Appointed by President Ronald Reagan in 1981, O’Connor was the majority leader in the Arizona Senate before being appointed to a mid-level state court. The last pol to serve as chief justice was former three-term California Governor Earl Warren, nominated to the high court by Dwight Eisenhower. Warren had also been the Republican presidential nominee Thomas Dewey’s running mate in the 1948 presidential election, California’s attorney general, chair of the state’s Republican Party, and district attorney of Alameda County, which includes Oakland.
Warren became, arguably, the most influential chief justice of the twentieth century. And he did so because he used his immense political skills to forge consensus on a range of issues, from school prayer to civil rights, most notably in the unanimous decision in Brown v. Board of Education, which held that segregated public schools were unconstitutional. Warren insisted on a unanimous ruling in Brown because he wanted it to have maximum impact, and it only came about because of his cajoling and wooing. It is considered one of the most formidable acts by any chief justice in the history of the Court. (Warren’s leadership on Brown has been documented in excellent books and a few films well worth seeing.) The Warren Court, at that time, included three former senators—Hugo Black, Sherman Minton, and Harold Burton—and two former attorneys general. The land-mine-strewn political atmosphere on civil rights called for a remarkable political sensibility. In the end, Democratic- and Republican-appointed justices supported the ruling, including Black, who represented Alabama in the U.S. Senate and was no integrationist.
Warren Harding nominated, and the Senate confirmed, former President William Howard Taft as chief justice. Taft used his political skills to press Congress for an extraordinary reorganization and modernization of the federal judiciary, establishing the judicial conference that allows judges with particular expertise to be paired with suitable cases. Taft pushed to build the Supreme Court building it is housed in today. The justices used to meet in the Capitol, and having their building be so recognizable today has helped cement the Court’s status as a coequal branch of government.
Charles Evans Hughes had been governor of New York, was named to the Supreme Court by Taft, stepped down to become secretary of state, and returned to the Court after being nominated chief justice by President Herbert Hoover. Like Taft, Hughes may have used his powers in ways that liberals then and now would scorn—leading the Court to strike down some essential New Deal programs, for example, and organizing opposition to Franklin Roosevelt’s “court-packing” plan. Still, he had the political dexterity to make the Court more accommodating to Roosevelt’s pressure. In the nineteenth century, Abraham Lincoln nominated Salmon P. Chase—one of his “Team of Rivals” frenemies, a treasury secretary, and a former senator and governor from Ohio—to be chief justice. The antislavery politician deftly presided over the impeachment trial of Andrew Johnson and welcomed the first Black American to argue before the Court, actions that took political judgment. He steered the Court away from the relentless Black bashing of his predecessor Roger Taney, who presided over the Dred Scott decision.
Compare those seasoned pols to today’s more cloistered Supreme Court justices. Eight of the current justices came straight from federal appeals courts; Elena Kagan would have come from one if the Senate had gotten around to voting on her nomination to the D.C. Circuit in 2000 by President Bill Clinton.
A Supreme Court composed entirely of heretofore little-known, black-robed appeals court careerists is something new and not altogether good. For most of the country’s history, any time a jurist was nominated to the Court, they most likely had held an essential nonjudicial appointment, like attorney general. The Constitution doesn’t demand that a Court justice be a lawyer, and they certainly don’t have to have been a judge. Think of the liberal lion William O. Douglas, the young New Dealer turned Supreme Court giant. He’d been Securities and Exchange Commission chair, and FDR considered making him his vice presidential running mate in 1944. Now the Court has become what one scholar calls “the bureaucratic court.” They’ve lived the monastic life of federal jurists for most of their lives.
It’s not that the current crop of justices aren’t impressive people who have done other things. Breyer himself worked in the U.S. Senate for Ted Kennedy. Sotomayor was a prosecutor for a few years in New York before George H. W. Bush tapped her for the federal bench. (Yes, she’s been a jurist forever.) Roberts was a corporate litigator after serving as a Reagan Justice Department official. Samuel Alito was a U.S. attorney, and Kagan worked in the Clinton White House and was dean of Harvard Law School. But none of them has done the full-time work of backroom persuasion that comes from running for and holding office or being of great renown. If we want diversity on the Court, another federal jurist from an Ivy League school, even if it’s a Black woman, will be missing the perspective and stature that comes from having done something else.
Biden can pick a justice who will build alliances and do a better job of making waves than Breyer, who was an exemplary jurist. Breyer spent much of his years on the federal judiciary in Boston, guiding the construction of the stunning courthouse erected during his term. He was nominated to the Second Circuit in 1980, pushed by his mentor Ted Kennedy. In what now seems quaint, if not ancient, times, Republicans assented to his confirmation during the 1980–81 transition from Jimmy Carter to Ronald Reagan when the GOP would assume control of the Senate. But instead of blocking Breyer, Republicans let a vote on his nomination go through. President Clinton, who nominated him to the Supreme Court in 1994, is said to have greatly admired Breyer’s mind but ultimately regretted being talked into this safe pick. Clinton, a former state attorney general and governor, made no secret of his initially wanting to name a politician for all of the reasons above, like Senate Majority Leader George Mitchell, a former federal judge, and fellow Democratic Governors Mario Cuomo of New York or Bruce Babbitt of Arizona, both of whom he declined to nominate in the end. (Cuomo played Hamlet, as usual, and Senate Judiciary Chairman Orrin Hatch opposed Babbitt, a former attorney general and governor of neighboring Arizona and the interior secretary, on a number of federal-state environmental conflicts.)
Nevertheless, Clinton understood the power of putting a figure like Warren on the bench, knowing that an experienced politician could sway other justices and give rulings even more force. The failed nomination in 1987 of the jurist and academic Robert Bork made presidents of both parties hew even more to a path of choosing low-key sitting judges who had already passed Senate confirmation. Babbitt’s loss was Breyer’s gain.
The erudite Breyer was a fine justice, and his decision, long encouraged, to resign rather than wait for age or death to speed his departure speaks well of him. Ruth Bader Ginsburg, of course, chose a different course. But now is not the time for another cloistered jurist; it’s time to restore the storied tradition in both parties of putting a big, political appointee on the Supreme Court.
So which Black female politician should Biden choose? Here are the pros and cons for four:
Kamala Harris. This would be the wildest ride, and the White House has ruled it out. It shouldn’t have. The vice president would be a historic pick—the first Black woman and the first Asian-American. A former San Francisco and California attorney general, Harris knows the law and has practical, real-world experience as a prosecutor. The downsides? At fifty-seven, she probably doesn’t want the job, and Biden has few tools of persuasion if he wants her. Harris is elected and can’t be fired, and politically, he can’t be seen as dumping her. Perhaps the biggest downside is that her replacement as veep would have to be confirmed by the House and Senate. The last time that happened was with Nelson Rockefeller in 1975. Who wants to go through another Manchinema drama with even higher stakes?
Stacey Abrams. Perhaps the most admired figure in Democratic politics is precisely the kind of politician who could be great on the Court. As Democratic leader in the Georgia Senate, Abrams knows how to build alliances, and as a grand champion of more accessible voting, she understands real-world problems. Her Georgia-to-Yale-Law story contrasts with fellow Peach Stater Clarence Thomas, who also emerged from humble beginnings; while Thomas became a pinched conservative after his years in New Haven, Abrams became a bighearted mainstream liberal, as public as Thomas is secretive, and as loquacious as the hard-right jurist is closemouthed. If the Biden nomination of her prevailed, it would be a big f**king deal. The biggest minus? Going to the Court would end her (long) shot at being Georgia’s first Black governor. What’s more, not being on the ticket in Georgia this year would likely hurt Senator Raphael Warnock’s uphill reelection bid.
Stacey Plaskett. The delegate from the U.S. Virgin Islands has a lot of smarts and charisma. That’s why Nancy Pelosi plucked the fifty-five-year-old Plaskett to be an impeachment manager against Donald Trump. Plaskett has good crime-fighting credentials as a former DOJ prosecutor in New York City. Her first appointment was in the George W. Bush administration, which might give her the bipartisan cred she’d need to be confirmed.
Terri Sewell. The Alabama representative went to Princeton (where her upper-class mentor was Michelle Obama), Harvard Law, and Oxford (where she became friends with Susan Rice). These credentials are interesting, but she brings more than that. Sewell’s district includes Selma, making her selection all the more symbolic and meaningful. (Her mother was the first Black woman elected to Selma’s city council.) She was a longtime intern for Senator Richard Shelby when he was a Democrat, and they are still friends; he’s a Republican now, and she might pick up his nod. Sewell was an intelligent operator in the House, quickly rose to the Ways and Means Committee, and has worked well with Republicans and New Democrats. Now that’s a politician.
Letitia James. The New York state attorney general holds the office once held by Andrew Cuomo, Eliot Spitzer, and Eric Schneiderman, all of whom left office in disgrace. The sixty-two-year-old Howard Law graduate has never had that taint of corruption and is widely known as a passionate progressive. She’s won a citywide election in New York for public advocate and has been elected to the city council. She wisely eschewed a bruising Democratic primary battle with incumbent Governor Kathy Hochul, but that makes her available for the high court. Downsides: She is very progressive and would have to recuse herself, most likely, from any Donald Trump cases.
I’m hoping Biden goes down this road. As a lifetime pol, and a former chair of the Senate Judiciary Committee, Biden just might see the virtue in naming a politician. But I worry that he will get pushed into safer bets, impressive young female African American jurists with agile minds, law review editorships, Democratic mentors, and interest group support without the horse-trading experience that can turn a Democratic justice into a force multiplier. In the post-Bork era, judicial nominees with shorter paper trails are favored by Democrats and Republicans, and there’s less chance that something will derail the nomination. That’s the safer bet. Hell, it may be the smarter one. Choosing a politician would be riskier, but it would be worth it.