It Takes a Woman to Represent the People
By Dr. Carmen Schaye, NWPC Vice President of Diversity
On February 24th, President Biden called Ketanji Brown Jackson offering her the position as his nominee to the Supreme Court. If confirmed, Jackson will make history as the first Black female justice, and only the eighth justice who is not a white man in the Court’s 233-year history. Of the 120 justices who have served, 115 have been men, and 117 have been White. A 2018 USA Today report found that since 2005 about 85 percent of all Supreme Court law clerks have been White. This makes Jackson’s nomination a historic choice about who oversees interpreting the Constitution and protecting equal justice under the law.
Filling a record number of vacancies in lower federal courts, Biden has nominated more women and people of color than ever before. By changing the racial and gender makeup of the court system, the judicial branch better reflects America’s diverse citizen experience. With Justice Breyer’s retirement, Jackson’s nomination won’t alter the 6-3 conservative to liberal ideological makeup of the Supreme Court, but it could fundamentally change the background of who sits on the Supreme Court. It is important to have representation from a Black woman on the Supreme Court because it helps everyone get represented in deciding cases important for democracy by bringing in different life experiences.
Jackson is the daughter of two public school teachers and administrators from historically Black colleges, who is eminently qualified as a Harvard Law graduate, federal appellate judge, district court judge, member of the US Sentencing Commission, an attorney in private practice, and as a federal public defender. The Supreme Court has never had a justice who worked as a public defender, nor a criminal defense lawyer since Thurgood Marshall became the first Black justice in 1967. In a confirmation hearing, Jackson remarked how she saw the public defender role as an opportunity to help people in need and was struck by how little her clients understood the criminal legal process. By representing Americans in every walk of life, she brings in much needed experience from historically underrepresented communities.
Jackson’s judicial record and opinions illustrate why it is important to have representation from a Black woman on the Supreme Court. During her US Sentencing Commission tenure, she amended systematically unfair guidelines for offenses related to 100-to-one disparities in punishments for crack and powder cocaine offenses, with disproportionately harsh sentences for Black offenders. She blocked parts of former President Trump’s executive orders against federal employee unions and ruled against Trump policies that expanded the categories of non-citizens who could be subject to expedited removal procedures without being able to appear before a judge. As a district court judge she wrote a 2019 opinion in Committee on the Judiciary v. McGahn (2019), siding with House lawmakers seeking the congressional subpoenaed testimony of then-White House Counsel Don McGahn, rejecting Trump’s Department of Justice argument that federal courts lack the authority to adjudicate disputes between the executive and legislative branches. More recently she was on an unanimous circuit panel that ordered disclosure of Trump White House documents to the House January 6th Committee, remarking, “Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.”
Women and minorities face serious obstacles to their voting rights and equality under the law. Nominating a Black woman to the Supreme Court has vital importance for the future of American equality and democracy. Republican lawmakers have recently tried to stop the passage of the Equal Rights Amendment from becoming the 28th Amendment, guaranteeing equal rights for women. Making voting more difficult, the Supreme Court has eroded the Voting Rights Act of 1965 in Shelby County v. Holder (2013), Brnovich v. Democratic National Committee (2021), and paused a February 7th, 2022 lower court ruling requiring Alabama to draw a new congressional map with a second majority Black district. By nominating and confirming a Black woman on the Supreme Court, more Americans are represented in their struggle for equality under the law, and the divisions that have marked its history come closer to being healed.
On March 21st the Senate confirmation hearing became a myriad of condescension and distortion from the right. It also saw praise from the liberal. The Senate confirmation proceedings are a tempest of humiliation and celebration. Regardless of race and gender the Senate interrogations are gruesome. Ketanji is no stranger to micro aggressions, as a Black woman she routinely experiences the discounting of her education and qualifications. But in today’s climate studying Black people’s reactions to racism has become entertainment to some. Ketanji brings a unique background. Her background is that of a federal defense attorney, As the lawyer for the Guantanamo Bay prisoners to serving as an assistant federal public defender, her legal interest focus is on representing the people vs. representing the government. It is known that the pathway to becoming a federal judge is usually by becoming a federal prosecutor. Focusing just on former prosecutors versus former criminal defense attorneys (including but not limited to public defenders), the ratio on the federal bench is 4 to 1.
Ketanji Brown Jackson brings experiential equity and diversity and the focus of representing the People to the Supreme Court. Her advocacy will serve “all women”, Afterall “It Takes a Woman” to make change.
© Dr. Carmen Schaye
