Biden’s pick needed prep
Future Black History Month observers will celebrate this February as the time when President Joe Biden announced the nomination of the first Black woman to the position of justice of the Supreme Court. Biden’s nominee undoubtedly will be bestowed with the same kind of historical significance given to Thurgood Marshall when his nomination to the high court was announced by President Lyndon Johnson on June 13, 1967.
Said Johnson of Marshall, “I believe it is the right thing to do, the right time to do it, the right man and the right place.”
The same can be said of Biden’s momentous appointment of a Black woman.
But Johnson approached the nomination of his celebrated “first” more adroitly than Biden has handled his.
It remains to be seen whether Biden’s process will be as helpful to his nominee as Johnson’s was to Marshall.
Johnson noted during his announcement that Marshall had already earned his place in history. Counting his service as a private counsel and as U.S. solicitor general, Marshall had argued about 50 cases before the Supreme Court, placing him at the time among just a handful of lawyers in U.S. history who had appeared so many times before the highest court in the land.
Johnson had thought many moves ahead. He had been grooming Marshall for the post, having asked him to leave the U.S. Court of Appeals for the 2nd Circuit in 1965 to serve as solicitor general. A transcript of Johnson’s July 7, 1965, telephone call asking Marshall to come to Washington revealed Johnson hinting that he had something else in mind: “I want you to have the experience and be in the picture. I’m not discussing anything else, and I don’t want to make any other commitments, and I don’t want to imply or bribe or mislead you, but I want you to have the training and the experience of being there day after day for the next few weeks, anyway. Or maybe the next few months if you could do it.”
Two years later, when Justice Tom Clark announced his retirement, Johnson was ready. And except for Southern senators, Marshall’s nomination was approved by the Senate 69 to 11.
Johnson was aware that there were other highly qualified high court contenders among the nation’s Black jurists and lawyers. But the nationally known Marshall, with Johnson in his corner, had a lock on the top of the list.
If only the same could be said of Biden and his prospective nominee. It’s not as if Biden hasn’t had time to make up his mind.
It was two years ago this month that Biden made a promise at a debate before the South Carolina primary. “I’m looking forward to making sure there’s a Black woman on the Supreme Court to make sure we in fact get everyone represented,” said Biden. That Rep. James Clyburn, D-S.C., whose backing rescued Biden in the hotly contested primary, had encouraged Biden to make the pledge only underscores the urgency of the president making good on his promise at the first moment possible.
Instead, when Justice Stephen Breyer announced his retirement, Biden reacted by repeating his two-year-old declaration and then launching a selection process that has taken on the semblance of a lottery.
From the time he made his promise, Biden knew or should have known shortly thereafter the universe in which he was working. He knew or should have known all he needed to know about the Black women serving on U.S. appeals courts and sitting as federal judges in district courts. He should have learned during his first year in office who are the Black women not serving on the federal bench with the strongest credentials, records, qualifications and dedication to the rule of law for service on the Supreme Court.
Biden should have been ready to announce his choice. As matters now stand, the names of exceptionally qualified Black women are being floated as trial balloons and subjected to behindthe-scenes sniping and outright attack. Litmus tests are being applied to shortlisted candidates without them having an opportunity to speak for themselves. What’s next for the candidates? Bidding wars? Public opinion polls? Senate whip counts?
None of this augurs well for the eventual nominee.
Biden has brought this upon himself and his eventual Supreme Court candidate. Reportedly, FBI vetting of potential candidates is underway. And Biden is now reviewing their records and plans to conduct interviews starting next week. Meanwhile, names dangle and potshots fire away. As recently as Thursday, Biden was inviting Senate Judiciary Committee Democrats to recommend candidates to replace Breyer.
End the politicking and analysis paralysis. Make good on your promise, Mr. President, and make the call now.