Supreme Court fight shows why Americans have such a hard time talking about equity for Black women
The backlash to President Joe Biden's pledge to nominate a Black woman to the Supreme Court has laid bare many Americans' difficulties talking about race, from the lack of a shared vocabulary to ignoring past de-facto rules that favored white men.
A survey showing three-quarters of Americans want Biden to give "all possible nominees" a shot at the latest Supreme Court vacancy underscores those problems, showing that many Americans cannot see Black women as qualified professionals, political advocates and experts told USA TODAY.
"Racial equity has never been seen by this country. We don't understand what it is and we have no blueprint for it," said Nikki Lanier, CEO of Harper Slade, a firm that advises companies on racial equity, or the process of fixing broken systems rather than focusing on individuals.
More: Biden promises Black woman nominee to SCOTUS as Justice Breyer announces retirement: recap
And as the president prepares to unveil his nominee by the end of February, Black political experts, from pollsters to legal professionals and lawmakers, say the Biden administration must be ready to defend their historic pick in an unprecedented way.
“This is not America's moment. This is America's history," Rep. Maxine Waters, D-Calif., told USA TODAY. "Racism is institutionalized in this country—whether we're talking about a Black woman being nominated for such a position as the Supreme Court or you're talking about a Black man being nominated for any high-ranking position.”
More: Democrats hope Biden's Supreme Court pick resonates in midterms as GOP eyes majority
Flawed polling as SCOTUS process starts
As a 2020 presidential candidate, Biden pledged to elevate a Black woman to the high court if the opportunity arose.
Biden reiterated his pledge last week when Supreme Court Justice Stephen Breyer formally announced his retirement.
But an ABC News/Ipsos poll in the days following Breyer's retirement showed just 23% of voters wanted the president to "consider only nominees who are Black women" versus 76% who said Biden should "consider all possible nominees."
Democratic pollster Cornell Belcher said the survey was flawed on several fronts, including the small number of respondents. He said a poll taking the national pulse on any topic should typically include 1,000 or more respondents.
“It's kind of irresponsible to present a 500 sample size national poll,” he said, calling the poll a "rush job."
The poll was conducted Jan. 28-29, just one day after Biden and Breyer spoke at the White House, with a 4.9% margin of error.
Belcher, who worked on former President Barack Obama’s campaigns, said the wording was also problematic because the question made people choose between Biden’s promise to make the court more diverse or the potential nominee’s qualifications.
“It is fuel to the tribalism fire, whether or not they intended for it to be,” Belcher said.
In a statement, ABC said: "ABC News polling is conducted following the industry’s best practices and our methodology is transparent and published."
More: Black women face obstacles to public office despite Biden's Supreme Court nomination vow
'There's never been such a thing as all possible'
Those who advocate for more inclusion in America's workplaces and government institutions chastised the ABC News/Ipsos poll as well, saying it ignores how certain groups have been deliberately locked out of power.
"The poll is absurd because we've never considered all possible nominees for any presidential post. There's never been such a thing as 'all possible' — what are they talking about?" Lanier said. "This is my problem with this upcoming conversation."
Advocates such as Lanier argue the poll question and methodology are the beginning of another clumsy conversation about race in America leading into what could be one of the ugliest Supreme Court confirmations to date. They point out the looming SCOTUS battle echoes the debate surrounding critical race theory and what to teach about race in American classrooms.
The survey was quickly used as fodder by many conservative critics to oppose the selection process. Its release coincided with some Republican senators voicing explicit — and racist — concern with Biden saying he would choose a Black woman.
Mississippi Sen. Roger Wicker said the nominee, who hasn't been named yet, would be a "beneficiary" of a racial quota system. The comment suggested any Black woman nominee would only have achieved her position through a quota system, and not on her own merits.
Texas Sen. Ted Cruz went further, saying it was "offensive" for Biden to pledge to nominate a Black woman.
"Black women are what, 6% of the US population? He’s saying to 94% of Americans, ‘I don’t give a damn about you, you are ineligible,' ... it’s actually an insult to Black women," Cruz said.
While Cruz is referring to the specific silo of the upcoming nomination, equity advocates say his comments fail to take into context how the overwhelming majority of Supreme Court justices — roughly 94%—have been white men since the high court's creation in 1789.
More: Race, gender become factors in Supreme Court confirmation battle before Biden names his choice
U.S. struggles to credit Black women
Part of the backlash to the historic nomination, according to experts, is the lack of understanding as to how Black women have navigated America's powerful circles.
"If anything, people should know that in order for a Black woman to even be considered — to even be at this level — she's already going to be above and beyond the qualifications because that's the world that Black women exist in," said Jatia Wrighten, a political science professor at Virginia Commonwealth University.
Wrighten said the adverse reaction to Biden's pick shown in the ABC News/Ipsos poll stems from a longstanding belief at the outset of how Black women are unqualified.
Yet potential candidates thought to be on the White House short list have similar records as previous Supreme Court nominees.
Among those whose names are mentioned as potential nominees, Judge Ketanji Brown Jackson, who sits on the U.S. Court of Appeals for the D.C. Circuit, graduated from Harvard Law and clerked for Justice Stephen Breyer.
California Supreme Court Associate Justice Leondra Kruger, a Yale Law graduate, clerked for Associate Justice John Paul Stevens and has presented a dozen cases before the court.
149 years, 11 months & 2 days ago, Charlotte E. Ray graduated from Howard law school & became America’s first Black, female lawyer
She eventually left the legal profession because the idea of a qualified, Black woman in court was unthinkable.
I’m sure things are different now. pic.twitter.com/QWdlbJmRMW
— Michael Harriot (@michaelharriot) January 29, 2022
Marquita Bradshaw, a former 2020 Democratic Senate nominee in Tennessee, said Black women typically face these questions whenever seeking higher officer.
People didn't stop questioning her qualifications until she won the nomination "because by then everybody knew that I was qualified."
But now, she said, "we are making leaps and bounds as Black women across the nation, where people are learning to see Black women in leadership roles that hadn't been filled before."
Bradshaw cited Kamala Harris making history as the nation's first woman vice president as one example of Black women breaking barriers in political office.
Defending against racist attacks
What will be different for this process, however, will be a national spotlight on not just how Republican senators react but how Democratic allies will defend the nominee.
Over 100 prominent Black woman wrote Biden a public letter in January thanking him for honoring his pledge, saying in the court's 233-year history now is the "time for African-American women to be represented in all sectors of government – including the Supreme Court of the United States, which ... has not had a Black woman nominated to serve on the highest court in the land."
Melanie Campbell, president and CEO of the National Coalition on Black Civic Participation, initiated the letter to the president because "we knew we needed to step up."
"Whoever it will be, we know that we've always had to have fight," she said.
Campbell noted similar efforts led by Black women in previous confirmations, such as the fight over Loretta Lynch's attorney general nomination and Kristen Clark being elevated as assistant attorney general.
"We know how to mobilize. We have power, so we're going to keep pushing and we're owning that power. And it's to the benefit not just for ourselves, but the nation," she said.
Former Bernie Sanders 2020 campaign co-chair Nina Turner does not believe it's the job of the Senate to simply rubber stamp Biden's pick. But, Turner said, "Republicans and Democrats, especially Democrats, do have an obligation to make sure that the confirmation process is fair to the jurist."
Remedying past discrimination
It's been almost six decades since Constance Baker Motley became the first African-American woman appointed to the federal judiciary.
Given the lack of racial and gender diversity on the courts overall, advocates argue, it is important for today's leaders to be unequivocal about why a Black woman should be appointed.
“It feels affirmative action-y, and it should," said Lanier, the equity firm CEO. "This is equity in action."
More: All eyes are on the Supreme Court. But push for diversity shouldn't end there, experts say.
Those values do not betray or undercut a nominee's qualifications, she said, but it does acknowledge how institutions that deliberately blocked certain groups must take different steps today.
"You narrow the pool based on qualified candidates, and that's exactly what President Biden has done," Lanier said. "So yes, he's fulfilling a campaign promise but he is marching in line with equity for a specific remedy to that past discrimination."
All but seven of the 115 justices who have served on the Supreme Court have been white men, with only two — Thurgood Marshall and Clarence Thomas — being Black.
There have only been five women to serve on the high court. Sandra Day O’Connor was confirmed in 1981. The late Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, who also was the first Hispanic person confirmed to the high court in 2009, and Amy Conney Barrett followed.
Ifeoma Ike, CEO of Pink Cornrows, an equity strategy group which advises companies, non-profits and individuals, said Black women voters especially are pushing Democrats to move forward on these issues differently.
"We own equity in our bones, and it is important that we are intentional about what we want and how we want it articulated publicly," she said.
Ike, an attorney, said the White House must begin to center the contributions Black women have made to U.S. law and policy.
The president, she said, personally has to remind the country of how voters were seeking a significant pivot from the Trump administration when they ushered him into the Oval Office.
Finally, Ike said, the Biden administration must demonstrate how having a Black woman justice advances democracy.
The ABC News/Ipsos poll's wording, she said, negates how the nomination of a Black woman to the court should be exciting for all Americans.
Ike, who served as an aide on the House Judiciary Committee for former Michigan Rep. John Conyers in 2011-12, said the nomination promise is not just for Black voters, "when knowing from the Civil Rights Movement and immigrant rights to women's suffrage and the labor movement, all were co-designed by Black women."
Since taking office Biden has moved at breakneck speed to create a more diverse federal bench. He has nominated eight Black women to the U.S. appeals courts alone, which is more than any previous president.
The American Constitution Society, a left-leaning legal group, found that 80% of his 42 judicial appointments have been women and 68% have been people of color.
Ike said the confirmation hearing presents a rare opportunity to educate America about how Black women benefit the country.
"When we talk about the Supreme Court, the ultimate decider of laws, it is important that individuals who were doubly told that they were not human beings absolutely weigh in on every part of law that comes before the court," she said.
Senate GOP split on attacks
GOP leaders are reportedly warning against launching a full-scale war, especially given the high court's 6-3 conservative makeup. Because Breyer is part of the court's liberal bloc, Biden's nominee would not change the ideological balance on the court.
But that hasn't stopped rank-and-file members.
Louisiana Sen. John Kennedy, for instance, said in an interview with Politico that the most important thing is a "nominee who knows a law book from a J. Crew catalog."
But other GOP lawmakers are taking a softer tone, saying they welcome efforts to make the high court more inclusive, albeit with a caveat.
"I have no problem with the president making that pledge during the campaign. I'd love to vote to put the first Black woman on the court,” Missouri Sen. Roy Blunt said in an interview with CNN. “But there is a critically important element here: judicial philosophy, and we'll see how that works.”
North Dakota Sen. Kevin Cramer provided the clearest warning to his colleagues to pump the brakes on entering into a debate on race and gender with Democrats, saying it's a waste of energy that could "change the momentum of this midterm election" if Republicans get in the mud.
"(W)e’re not going to change the makeup of the court, so why spend a lifetime on that hill," he told reporters.
Democrats and their allies believe this is a chance to take charge of the national conversation, which some say must go on offense when addressing racial and gender bias.
Turner, the former Ohio legislator who is a face of the party's progressive wing, argued that naming a Black woman to the high court is a corrective measure.
“I didn't see them [Republican lawmakers] speaking up and speaking out about the affirmative action that has been going on since the inception of the Supreme Court being overwhelming majority white men,” said Turner. “This is affirmative correction of making the crooked path straight and understanding that our diversity is our strength.”
Others such as Aimee Allison, founder of She the People, an advocacy group for women of color in politics, said they will be watching.
Black women are the Democrats' most loyal voting bloc, and how they support the nominee could translate into votes as soon as the November midterms, when control of Congress will hang in the balance, Allison said.
"The confirmation process, the questioning of the nominee, the ways in which she's attacked and then defended will tell us a lot and also signal who's got our back as Black women," she said.
"And that is going to be as important as the actual confirmation itself."
Rep. Waters said the nomination represents how Black women are finally being recognized as a powerhouse in the party and the country.
"This emerging power is exciting to experience and to be involved with. And so I'm so looking forward to the debate," Waters said. "I'm so looking forward to them learning that there are Black, very competent women ready to take that seat.”
This article originally appeared on USA TODAY: Supreme Court fight shows struggle talking about equity, Black women