This moment has been a long time coming. A Black woman could have been appointed to the U.S. Supreme Court half a century ago — and why she wasn’t, should serve as a warning about what lies ahead for the country as President Joe Biden introduces his new nominee, Ketanji Brown Jackson. It’s also a reminder that representation matters, but not for the reasons we hear most loudly from the left and the right.
Constance Baker Motley — the first African American woman appointed to the federal bench — was touted for the Supreme Court as early as the 1960s. She was eminently qualified. The National Women’s Political Caucus called her “an obvious choice,” given her accomplishments and her prominent role in the struggle for human rights.
Yet Motley’s sterling qualifications did not matter much to the critics who denied and diminished her accomplishments and her character. Detractors could not — or would not — face the truth: Despite the era’s rampant discrimination, this Black woman’s professional accomplishments far surpassed those of many other lawyers, including male and white judicial nominees. So she never got the nod.
As a pathbreaking figure enters the confirmation process, we need to be on guard for the modern version of the tired old playbook used against Motley.
Motley made an indelible mark on the legal profession and the country as a chief legal tactician of the Civil Rights Movement. She helped litigate Brown v. Board of Education, one of the most important cases in American constitutional law; she desegregated schools and universities in the South; she represented Martin Luther King Jr. in Birmingham; and she won nine of the 10 cases that she argued before the U.S. Supreme Court.
But for many, her record was simply never enough. Even the American Bar Association — which was all-white until 1950 — rated Motley merely “qualified” (the middle tier) for a federal judgeship, asserting that she lacked trial experience in New York. This was a ludicrous objection given Motley’s extraordinary background. She had by then litigated nearly 200 cases in federal trial and appellate courts nationwide and in the process secured the constitutional rights of students, protesters and capital defendants.
For others, it was precisely Motley’s successes that made her a lightning rod. They recast her remarkable record as a civil rights lawyer into “bias” or professional “narrowness.” Motley’s role in the fight for equal opportunity in American institutions meant, they said, that she could not be “fair” to all litigants.
Sen. James Eastland of Mississippi, chair of the Senate Judiciary Committee and a proud defender of white supremacy, held up Motley’s appointment to the federal district court for seven months by equating her civil rights advocacy with communism. Later, Sen. Robert F. Kennedy of New York thwarted Motley’s nomination to replace Thurgood Marshall on the Court of Appeals, after President Lyndon B. Johnson appointed Marshall as U.S. Solicitor General. It would be seen as “too political,” Kennedy argued, to appoint two “black NAACP lawyers” to high federal posts at the same time. The future liberal icon lobbied instead for a respected white male jurist.
Even after Motley earned her seat on the bench, lawyers continued to weaponize her race, sex and practice background. In 1975, an attorney for a prestigious New York firm accused of sex discrimination argued that because Motley — as a Black woman — likely had experienced bias in the workplace, she could not preside over the suit.
Motley deftly rejected this identity-based argument. “[I]f background or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court could hear this case,” she wrote. Her opinion, which turned the lawyer’s argument on its head, is still cited today to reject identity-based claims to disqualify a judge.
Yet from the moment that Justice Stephen Breyer announced his retirement and Biden reaffirmed his pledge to nominate a Black woman to the Supreme Court, the groundwork for an identity-driven dismissal of qualified candidates was being laid. The “unqualified” aspersions will never be entirely shut down.
It was always clear, based on widely discussed short lists, that Biden would nominate a jurist with exemplary credentials and experience equal, or perhaps even superior, to those of sitting justices. Yet truth is often a casualty during confirmation battles. According to one senator, any Black woman nominated would be “someone who is the beneficiary” of an affirmative action “quota.” Another called Biden’s vow to appoint a Black woman “offensive” and inconsistent with “putting the best jurist on the bench.” No one should be surprised to hear such absurd rhetoric, even in 2022.
Ultimately, Biden’s nominee will be confirmed by virtue of simple math; Democrats have a majority, and several Republican senators have declared that they would support a Black woman nominee. But the same tiresome arguments may still shadow the new justice.
A Black woman on the court will be a milestone, one that proponents of equal opportunity have sought since the Civil Rights Act of 1964. But not necessarily because of how she will decide cases. Motley’s appointment to the bench mattered not because she or other African Americans or women brought “something totally different to the bench than white men,” she persuasively argued. Rather, equal access to powerful positions in government helps build confidence in American institutions and strengthens our democracy.
I hope — in spite of our fractious politics — that we will see a degree of bipartisan agreement with the sentiment expressed by Republican Sen. Jacob K. Javits, when he enthusiastically supported Motley for the bench in 1966, calling her appointment a “breakthrough.”
“The greatest tribute” to Motley, he said, was that she would have earned the position on the basis of her “talent and training,” irrespective of race or gender. The same is true of Ketanji Brown Jackson.
Motley would be thrilled to see an African American woman replace Breyer. That justice will stand squarely on her shoulders.
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By: Tomiko Brown-Nagin
Title: Opinion | This Black Woman Could Have Served on the Supreme Court Decades Ago. She Has Some Lessons for Ketanji Brown Jackson.
Sourced From: www.politico.com/news/magazine/2022/02/25/supreme-court-justice-black-woman-constance-baker-motley-ketanji-brown-jackson-00011636
Published Date: Fri, 25 Feb 2022 09:30:00 EST
