The ‘Black Woman Question’ and the Court Nominee

There’s a world of difference between Biden’s possible picks. And then there are administration policies that afflict and even endanger Black women.

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In January, when Supreme Court Justice Stephen Breyer announced his intention to retire from the Court, liberals and conservatives alike rushed to examine President Biden’s campaign promise to nominate a Black woman when a seat on the Court came open.

While many liberals have praised the promise in the name of representation, Biden’s nonracist choice doesn’t portend a sweeping anti-racist agenda. Indeed, it rings somewhat hollow against the backdrop of administration policies that disproportionately afflict Black women. Biden’s refusal to provide student loan relief, his support for boosting of law enforcement budgets and for continuing cannabis criminalization all place an undue burden on Black women. Nonetheless, a short list of qualified Black women has emerged, highlighting how even being so nonracist could lead to the appointment of a justice whose decisions end up effectively racist all the same.

That could well be the case should Biden pick one of the supposed front-runners, Judge J. Michelle Childs, who was the first contender the White House confirmed was in the running for the job. Her history as a judge on the U.S. District Court for the District of South Carolina looks to be almost anti-progressive. Judge Childs’s experience includes defending employers in discrimination lawsuits, prompting some labor advocates to oppose her potential nomination. And while she has vocally supported criminal justice reform, she still sentenced a man to prison for 12 years for distributing eight ounces of marijuana, as the Prospect’s Alexander Sammon reported. Childs’s nomination would fly in the face of the very values President Biden touts.

No matter which candidate turns out to be the nominee, this Black woman will be sitting on a radically right-wing Court.

Among the other strong contenders, Judge Ketanji Brown Jackson is the clear progressive favorite. Well-positioned as a judge for the U.S. Court of Appeals for the D.C. Circuit, Jackson has presided over multiple high-profile cases, notably forcing Donald McGahn, former counsel to Donald Trump, to comply with a subpoena from Congress. A onetime clerk for Justice Breyer, Jackson has successfully been through the confirmation process three times as she’s climbed the judicial ladder.

Unlike Childs, Jackson has ruled favorably for unions. In 2018, she struck down Trump executive orders that curtailed the collective-bargaining rights of federal employees. Despite one ruling in which she rejected a settlement for 5,500 Black Lockheed Martin workers who’d sued the company over discriminatory promotion policies—which led Alabama’s first Black federal judge, U.W. Clemon, to oppose her nomination—Jackson is known for her worker-friendly decisions. Her most recent such decision, AFL-CIO v. Federal Labor Relations Authority, was delivered just this month.

What most clearly differentiates Jackson from the other known contenders is her extensive history as a public defender. The Supreme Court has not had any justice with a defense background since Thurgood Marshall stepped down in 1991. As Abbe David Lowell wrote in The Washington Post, “A single justice with real criminal defense experience might not make a numerical difference in many cases, but their presence would ensure that all perspectives in addressing fundamental rights are considered.”

The country’s mass incarceration indicates that this experience may have provided Jackson with a particularly important wealth of knowledge not available to other judges. In her own words, “Having defender experience can help the judge—not only in considering the facts and circumstances of the case—but also help the system overall.”

Maybe President Biden will nominate Jackson and progressives will get their way. And maybe Jackson’s stance on the Court, if confirmed, would be groundbreakingly anti-racist. But no matter which candidate turns out to be the nominee, this Black woman will be sitting on a radically right-wing Court, tying her hands in ways that President Biden’s are not. More broadly, even a Jackson nomination doesn’t counter or cover up those administration policies that still leave Black women behind.

A second Trump administration will cement a right-wing majority on the Supreme Court for a generation, and put our collective future in the hands of someone who will be virtually unchecked by our institutions. The country has shifted rightward, and the reverberations will ensue for potentially the next few decades. In this climate, a robust independent media ecosystem will be more important than ever. We're committed to bringing you the latest news on how Trump's agenda will actually affect the American people, shining a light on the stories corporate media overlooks and keeping the public informed about how power really works in this country.

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