Supreme Court debate reveals unique ways black women are questioned
When President Joe Biden announced last month that he would honor his campaign promise to appoint a black woman to the Supreme Court, it sparked a wave of criticism, particularly among white Republican men.
Texas Senator Ted Cruz said specifying a black woman for the role is “offensive”. Mississippi Senator Roger Wicker accused the candidate of being a “beneficiary” of affirmative action. Louisiana Sen. John Kennedy feared the candidate could not tell “a law book from a J. Crew catalog” and would try to rewrite the Constitution to “advance a woke agenda,” according to Politico.
The comments suggested that in appointing the first black female Supreme Court justice, Biden would inevitably exclude more qualified candidates.
A recent survey shows that public perception of the readiness of Supreme Court nominees varies by race. When respondents to a Yahoo! News Survey was given a list of qualifications for potential black candidates for the Supreme Court, whites were less likely to consider them qualified than blacks — by up to 15 percentage points.
The gap narrowed to 2 percentage points for Merrick Garland, whose Supreme Court nomination by President Barack Obama was blocked by Senate Republicans in 2016. And the gap reversed for the nomination from Amy Coney Barrett to the Supreme Court by President Donald Trump: White respondents were Continued likely than black respondents to consider her qualified, by 4 percentage points.
Cook County State Attorney Kim Foxx, the first black woman elected to her position, noted that when Trump announced plans to appoint a woman to the Supreme Court, he did not draw criticism of Biden.
“There hasn’t been a reaction like the one we’re seeing right now from ‘how dare you limit the pool? ‘” Foxx said. “There was no question whether any woman he could choose would have the ability.”
The disproportionate questions black women receive about their professional qualifications are an example of “misogynoir”, a term dubbed by researcher Moya Bailey in 2010. It defines the unique form of prejudice – a combination of misogyny and racism – aimed at women black.
When black women excel in roles traditionally held by white men, especially a lifetime position like the Supreme Court, it can be seen as a threat to the status quo. Foxx and other black women at the top of the legal field say they have received such attacks from internet trolls and criticism of public officials, sent by mail, email and voicemail — sometimes anonymously.
The Supreme Court has not reflected the demographics of the legal field in the United States. There are more than 1.3 million practicing lawyers in the country and 37% are women, according to the American Bar Association’s 2021 National Lawyer Population Survey. In the 25 states that reported the race and ethnicity of practicing attorneys, 5% are black — a consistent statistic since 2011.
A recent survey by the Minority Corporate Counsel Association of 225 US law firms found that just over 2% of attorneys were black women.
During Kristen Clarke’s confirmation hearing last year to head the Justice Department’s Civil Rights Division, some Republicans asked her about a satirical article she co-wrote as a college student. Harvard University comparing the genetics of blacks and whites. They also questioned her decision as leader of the Harvard Black Student Association to invite an anti-Semitic author to speak, a decision for which she apologized 25 years ago. Those lawmakers did not ask Clarke during the hearing to talk about his career or his professional qualifications to lead the division.
But in the Supreme Court’s more than 230-year history, there have only been two black people, both of them men: Thurgood Marshall and Clarence Thomas. And of the 115 judges who served on the court, only five of them were women – none of them were black. (Judge Sonia Sotomayor, appointed by Obama, is the first Latina to serve on the panel.)
Biden has appointed more people of color and women to executive and judicial positions than any other president in his first year in office, according to the Brookings Institute. Of the 37 U.S. attorneys Biden has named, more than half are black and seven are black women. Fifteen of the nominees were the first in their demographic to serve in their districts, according to Wyn Hornbuckle, deputy director of the Justice Department’s Office of Public Affairs.
Biden has also nominated and the Senate confirmed more women of color as federal and circuit court judges than any other president in their first year. Of Biden’s 42 senior lawyers at the end of January, 29 identify as black, Asian, Native American, Hispanic or multiracial.
US attorney Rachael Rollins of Massachusetts, who became the first black woman to hold the post last month, said she had received an upsurge in racist and sexist messages as well as death threats following a controversial confirmation process. Rollins said she reported the attacks to local police and the US Marshals Service, which protects more than 30,000 federal prosecutors, judges and court officials.
“It’s a 100% guarantee that whoever the candidate is will be attacked. She will see her credibility, her intelligence, her abilities challenged,” Foxx said. “The strategies she had to maneuver to get to this point, she will have to keep employing them. … I suspect this is nothing new for her.
Biden’s Friday nominee, Ketanji Brown Jackson, whom he nominated last year to the United States Court of Appeals for the District of Columbia Circuit, has received support from nearly two dozen legal scholars in the Supreme Court before its confirmation, according to its written responses to the Senate Judiciary Committee. She served as a federal public defender and district judge, and her decisions have included qualified immunity cases for law enforcement.
This story originally appeared in Capital B on February 15, 2022.