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Stephen Breyer has accepted what RBG couldn’t. Now Biden needs to keep his promise

The president said he’d put the first Black woman on the Court during his candidacy. Considering his recent failure on voting rights, it’s important to remind him of that now

Michael Arceneaux
New York
Wednesday 26 January 2022 19:48
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<p>Supreme Court Breyer Retirement</p>

Supreme Court Breyer Retirement

During the 2020 Democratic presidential primary, Joe Biden repeatedly made the pledge that if elected president, he’d put the first Black woman on the Supreme Court.

With reports that Stephen Breyer is set to announce his retirement, President Biden has the opportunity to deliver on his promise.

Thankfully, Breyer, at the age of 83, has recognized that it is time to settle down and enjoy the perks of not working. That is in contrast to Speaker Nancy Pelosi, who at 81 just announced that she will seek reelection.

I’m not a fan of living under a gerontocracy so I’m thankful Breyer has opted to bow out. I wish his past Supreme Court justice colleague Ruth Bader Ginsburg had done the same. I recognize how angry that statement might make some readers, but conservatives spent decades plotting for a takeover of the Supreme Court and it’s time to take lessons from their success. For starters, they know when to put pressure on justices to gracefully exit while they have power.

In the case of nominating a Black woman on the Supreme Court, this is not the first opportunity the party has had to make this happen. They simply choose not to exercise it.

In 2016, activists stressed to then-President Obama the importance of nominating a Black woman to the bench. “The appointment of an African American woman to the Supreme Court is essential to his legacy,” Barbara R. Arnwine, president of the Transformative Justice Coalition, who helped launch one of two online petitions calling on Obama to defy fierce Republican opposition to any nomination being made and name a woman of color to the court, explained to the Washington Post.

Yet Obama went with Merrick Garland, a middle-aged white man and political moderate, under the presumption that Republicans might find it politically difficult to deny him a hearing. How well did that go? I still think about what a mistake it was to not make the denial of a Black woman to the Supreme Court a campaign issue – especially when Republicans nominated a bigot serially accused of sexual assault.

Republicans would reject the whitest version of Jesus Christ if Biden nominated it to the Court (he would be horrible on taxes and immigration, they’d likely say), so there is no point in making calculations based on the right. In this case, the only thing that matters is that Biden made a promise to Black voters. One imagines he intends to keep it, but it never hurts to remind a sitting president of what he said as a candidate.

Last September, House Majority Whip James Clyburn said he talked to Biden about nominating a Black woman to the Supreme Court before the South Carolina Democrat made his pivotal endorsement during the 2020 presidential primary. Speaking on Bloomberg TV’s Balance of Power with David Westin, Clyburn confirmed reports he had pressed Biden on the issue. “I have three daughters,” he said. “I think I would be less than a good dad if I did not say to the president-to-be: This is an issue that is simmering in the African American community, that Black women think they have as much right to sit on the Supreme Court as any other women, and up to that point none had been considered.”

The lack of Black women on the Supreme Court is mostly attributed to systemic failures in which they suffer from the intersection of racist and sexist prejudices. People on the left and right can argue about that all day, but whatever the reason for their exclusion, representation matters. There are already names floating around for Biden to choose from. Personally, I root for Sherrilyn Ifill, a law professor and president and director-counsel of the NAACP Legal Defense Fund.

For a president who has not managed to deliver on voting rights or police reform, it is vital to Biden’s position that he make good on a choice that is completely in his control.

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