January 28, 2022

A Moment for Action – and a Black Woman Justice on the Supreme Court

Russ Feingold President

Russ Feingold
ACS President Russ Feingold

The announcement this week that Justice Stephen Breyer will retire at the end of this Supreme Court term calls for reflection, appreciation – and action.

Throughout his career, Justice Breyer defined himself as a thoughtful jurist of great intellect and integrity. I was pleased to vote for his confirmation to the Supreme Court, and I praise his conviction that our laws and legal systems should protect the lives of all people, and not just the partisan interests of a few. We at ACS were grateful for his appearances at our 2017 national convention and hope he will continue to share his wisdom with us in what we know will be a productive retirement.

As we reflect on Justice Breyer’s legacy, we also must seize upon this moment for action. We applaud President Biden for reaffirming his commitment to nominating a Black woman to the Supreme Court and are urging the administration to promptly nominate a candidate. As soon as the President announces his nominee, we are urging and expect the Senate will promptly take up that nomination.

Unlike recent Supreme Court confirmations, we expect the Senate to comply with standard norms and procedures in considering whomever President Biden nominates. The Senate has confirmed dozens of lower court judges with bipartisan votes over the past year, and we would hope to see similar bipartisanship in filling Justice Breyer’s seat.

Our highest court has never represented the diversity of the American people. For most of our history, it was uniformly white and male, to our collective detriment. Justices inevitably bring to their job their life experience, and, in order for the Supreme Court to truly understand and address the needs of the American people, it is imperative to have its members reflect the American public and a variety of lived experiences. There has never been a Black woman justice on the Supreme Court, and we look forward to this soon changing.

There are a many exceptionally qualified Black woman lawyers —both within and outside of the federal judiciary. This includes each of the Black women being discussed in the press right now as potential nominees, all of whom are exceptionally well qualified and would make excellent Supreme Court justices.

We are appalled by the racist remarks being made about President Biden’s commitment to nominating a Black woman and about potential nominees. Such racist attacks are repugnant and serve only to underscore the systemic racism and oppression that Black women have consistently faced in this country. These attacks further highlight how unrepresentative our highest court has been and why it is imperative that we prioritize diversity on our courts.

I want to emphasize the importance of this Supreme Court vacancy not delaying the nomination and confirmation of judges to the lower federal courts. There continues to be many vacancies on the lower courts. We expect the President and the Senate to continue their commitment to filling these vacancies, including with diverse candidates. All courts matter, and it is important that the pace in filling lower court vacancies not let up.

We similarly must and will continue to advocate for urgent Supreme Court reform. Filling this Supreme Court vacancy will not remedy the Right’s packing of the Supreme Court or the Court’s current legitimacy crisis. The preservation of our democratic legitimacy necessitates Supreme Court reform, and the urgency for such reform is just as strong today as it was before Justice Breyer announced his retirement.

ACS looks forward to working and making progress on these collective priorities – and to our country’s first Black woman justice on the Supreme Court.