A Black woman on the Supreme Court can't fix Democrats' problems, but America needs her

Show Caption

I’d like to thank a few exceptionally tone-deaf conservatives for reminding me to be thrilled by the prospect of a Black woman justice to succeed Justice Stephen Breyer on the Supreme Court. I was distracted by PTSD flashbacks to the high court politics of the past few years – the most craven, consequential power grabs of my professional lifetime – until they made it clear how badly America needs this new justice.

President Joe Biden says he’ll keep his promise to nominate a Black woman. All the 50 Senate Democrats need is for every single one of them to support that person and to stay alive and healthy enough to cast that yes vote. Barely post-op, delivered by ambulance and wheeled in while hooked up to an IV would be fine.

And do not, repeat do not, listen to Sen. Susan Collins, R-Maine, when she says there is no need to rush this process. There are good reasons to move quickly, including the fragility of elderly or ailing Democrats, a trouble-making, hyperpartisan Senate GOP and, not least, the interminable wait for this milestone.

End to affirmative action for white men

This “first” would come a mere 150 years after the first Black woman became a lawyer and put an exclamation point on an overdue message: We are ending centuries of affirmative action for white males on this court. 

Some conservatives don’t see it that way. Ilya Shapiro (hired to start this week as senior lecturer and executive director of the Georgetown Center for the Constitution, but already on "administrative leave" pending an investigation) posted a series of notorious, now-deleted tweets about settling for a “lesser black woman” rather than his personal favorite, an Asian American man. Sen. Roger Wicker, R-Miss., says flatly that Biden’s nominee will be the “beneficiary” of an affirmative action “quota.” 

If we are lucky, remarks like these will create more awareness of why affirmative action is necessary. I often agree with Charlie Sykes, editor at large of The Bulwark, but given past bias and exclusion, I can't get worked up about all the brilliant people he frets “need not apply” due to Biden’s explicit race and gender promise. 

Breyer retirement: Look out for even more political theater at the Supreme Court

The truth is that countless people are qualified to serve on the Supreme Court, yet until 1967,  only white men were chosen. Until 1981, when Ronald Reagan delivered on his pledge to name a female justice, only men served. The grand total since the birth of the nation is two Black justices and five women. 

Asked in 2015 when there would be enough women on the court, Justice Ruth Bader Ginsburg replied: "When there are nine." Biden's nominee would make four, a high-water mark. 

These statistics are not an affirmative-action situation requiring an asterisk, as Shapiro put it in another of the deleted tweets his new boss called “appalling.” They are a disgrace.

You know what does call for an asterisk?

► Neil Gorsuch getting the seat that should have gone to Merrick Garland in the last 10 months of Barack Obama’s presidency.

►Brett Kavanaugh getting his seat despite credible claims of sexual assault and other misconduct that the FBI said it would investigate but did not.

►Amy Coney Barrett getting confirmed eight days before the 2020 election and just five weeks after Ginsburg’s death (this after GOP hypocrite-in-chief Mitch McConnell had said Justice Antonin Scalia's February 2016 death was so close to the November election that voters deserved a say).

A historic Supreme Court nomination? Protests about 'qualifications' of a Black woman are gross.

This is how liberals find themselves a 6-3 minority on a court that gives every indication it plans to drag America so far to the right – on everything from abortion, religion and race to guns, public health and the rules of democracy – that in a few years, we might not recognize it.

The depth of this political ditch is due to Ginsburg’s refusal to retire during the Obama administration. You could almost hear the entire Democratic Party exhale when the news broke last week that Breyer, 83, would step down this summer.  

More from Jill Lawrence: Happy 'woke' 2022, Democrats. With democracy in the balance, time to reclaim your brand.

Yet all that does is head off a short-term political and psychological catastrophe for Democrats. The root problem is an accelerating shift to minority rule – the underrepresentation of urban America in Congress and the Electoral College, the Senate filibuster that means 41 of 100 senators representing a fraction of the country can thwart the majority, and the gerrymandered GOP takeover of state legislatures that are now passing laws to suppress voting and manipulate election results.

Majority picked by popular vote losers 

The Supreme Court is a case study of minority rule. Five of six sitting justices were named by Republican presidents who won the state-by-state Electoral College while losing the national popular vote. Hillary Clinton bested Trump by nearly 2.9 million votes in 2016, but he got to pick Gorsuch, Kavanaugh and Barrett. Al Gore beat George W. Bush by over half a million votes in 2000, but Bush became president and went on to name Chief Justice John Roberts and Justice Samuel Alito.

Opinions in your inbox: Sign up for our daily digest of commentary on current event

Unrest and rage are now mostly roiling on the Republican side, but that could change. I have never before heard staid, center-left people of a certain age talk about taking it to the streets. I’m hearing it from them now as Republicans keep showing how far they'll go to win and hold power. Organizing and protests once nudged America toward civil rights and out of Vietnam. They awakened consciences and catalyzed change. They could do so again.

But that will take time. At this moment, the realm of the possible is both limited and unlimited. Within the next few months, fingers crossed, we should be able to celebrate a new justice who will bring sorely needed perspective to this court. Will she influence the votes and opinions of her conservative colleagues? Don’t count on it. Will she inspire Black girls to become lawyers and judges? That’s a yes, and wonderful. Will she and Biden make history? Absolutely.

It’s enough. For now.

Jill Lawrence is a columnist for Paste BN and author of "The Art of the Political Deal: How Congress Beat the Odds and Broke Through Gridlock." Follow her on Twitter: @JillDLawrence