President Joe Biden’s campaign pledge to nominate the first Black woman to serve on the Supreme Court came against a backdrop of long-simmering anger among civil rights activists over former President Barack Obama’s decision not to make such a historic nomination during his eight years in office.
Biden made his promise at the height of the 2020 Democratic presidential primary contest. But he was at Obama’s side as vice president when three vacancies emerged on the high court.
None of Obama’s nominees were Black, and some observers saw few signs that the White House was striving to put a liberal Black justice on the court.
“It was like the Black head coach was not going to seriously consider anyone who was Black,” said Roland Martin, a prominent Black broadcaster and political commentator with close ties to many activists.
Some Black leaders see Obama’s reluctance to name a Black Supreme Court justice as part of his larger concern about engaging in high-profile fights over issues of race and representation. Obama had felt burned by wading into policing issues in 2009 by criticizing the arrest of Harvard professor Henry Louis Gates at his own home, a moment he later said damaged his standing with white voters.
“It never made sense to me. It still doesn’t make sense to me,” said Transformative Justice Coalition President Barbara Arnwine. “Phobia after the beer summit? That’s the only thing, but I don’t think that made any sense either. ... There never was a good rationale.”
Biden’s role in Obama’s Supreme Court choices remains murky, but it’s clear that some of his top aides were deeply involved, including his then-counsel Cynthia Hogan and Ron Klain, his chief of staff then and now.
“Ron Klain and Cynthia Hogan a played a very important role in it,” Greg Craig, Obama’s first White House counsel, recalled of the administration’s early work to vet nominees. “I’m sure the president talked to the vice president about individual nominees and the dynamic on the Hill.”
If Biden mounted any push for a Black justice in 2009, 2010 or 2016, there is no public sign of it. Indeed, there is some indication that he did not view racial diversity as a key factor back then. One potential contender Biden has acknowledged trying to pull into the Supreme Court nomination process in 2010 was Sen. Sheldon Whitehouse, but the Rhode Island Democrat — a White male — said he preferred to serve out his Senate term.
Now, Biden is set to take the step Obama never did, preparing within days — or perhaps hours — to put forward a history-making nomination of the first Black female justice. Doing so might also be viewed as making amends. Biden could soothe the hard feelings some activists still feel over painful snubs during the Obama years and even earlier, when Biden’s stewardship of the Senate Judiciary Committee during the confirmation hearings for Justice Clarence Thomas drew complaints of unfairness from backers of Anita Hill, the law professor who accused him of sexual harassment.
“Then-Vice President Biden was a strong advocate for nominating Justice [Sonia] Sotomayor, and is proud of the role he played in confirming the court’s first Hispanic member," said deputy White House press secretary Andrew Bates. "He is also proud of fighting for Justice [Elena] Kagan, who he had named as special counsel for the Senate Judiciary Committee while he was its chairman. The President looks forward to announcing an extraordinarily qualified nominee, with the strongest record, credentials, intellect, and character anyone could have, and who will make history as the first Black woman to serve on the Supreme Court.”
There were few complaints from the Black community in 2009 when the newly elected Obama tapped Sotomayor to replace Justice David Souter. Sotomayor was the first woman of Hispanic descent named to the nation’s highest court.
“Many people understood the choice of Sotomayor,” Martin recalled.
However, when the next vacancy occurred with the retirement of Justice John Paul Stevens the following year, civil rights leaders pressed the White House to give serious consideration to naming a Black female justice.
“In 2010, we said, ‘It’s our time now,’ and we expected Obama would, in fact, nominate a Black woman,” said Arnwine, who served at the time as president of the Lawyers' Committee for Civil Rights Under Law.
Ultimately, Obama tapped Kagan, a white woman who formerly served as solicitor general and as Harvard Law School's dean, as Stevens' replacement. The move left some Black leaders deeply disappointed and they made that clear to the White House. “They were shocked by the Black blowback,” said Martin. “The reaction, the intensity of it from the African American community was different with Kagan.”
Short lists publicly reported at the time said Obama considered a couple of Black women: Georgia Supreme Court Justice Leah Sears and 7th Circuit Court of Appeals Court Ann Williams. Both women declined to comment for this story, but Black activists said they never got the impression those candidates were seriously in the mix.
After Obama picked Kagan, the White House pressed civil rights groups to endorse her. Most did so after a few days of cajoling, but some leaders grew disenchanted that more was not done to advance Black representation on the court.
“I found myself at considerable odds with the administration over it,” Arnwine acknowledged. “I was so upset that the administration was angry with me for not going along and that I did not think Elena Kagan should have gotten that slot—and I still don’t.”
Martin said he also recalled being stopped in the White House driveway by a top Obama adviser a couple days after the Kagan selection and confronted about his public criticism of the choice. The adviser argued that “it would make it difficult for Obama people in the future to appoint a Black Supreme Court justice,” Martin recalled. “I said, ‘No, it doesn’t.’”
The scene replayed itself in 2016, when Justice Antonin Scalia died unexpectedly early in the year. Some Black politicians and activists again pushed the White House to pick a Black woman for the high court slot. Obama reportedly interviewed one Black man, 9th Circuit Judge Paul Watford, but no Black women seemed to be in contention.
Rep. Jim Clyburn (D-S.C.) urged Obama at the time to nominate Howard University Law School Dean Danielle Holley-Walker, journalists Jonathan Allen and Amie Parnes wrote in their book about Biden’s unlikely 2020 victory, “Lucky: How Joe Biden Barely Won the Presidency.”
However, Obama and his aides viewed the confirmation fight as uphill, even quixotic, due to early moves by Senate Majority Leader Mitch McConnell and Senate Judiciary Chair Chuck Grassley (R-Iowa) to refuse to hold a hearing, let alone a vote, on any Obama pick. Obama believed that resistance called for a nominee who had an unusual base of support across Washington, former aides and advisers said.
“Because of the political climate, President Obama wanted to make sure he picked somebody who was beyond any possible criticism over whether or not he was ready to serve,” said a former Obama White House official, who asked not to be named when discussing internal deliberations. That led Obama to pick the widely respected chief judge of the D.C. Circuit Court of Appeals, Merrick Garland, who is white. Garland never got a hearing or a vote and wound up leaving the appeals court bench last year to serve as Biden’s first attorney general.
“Certainly, some people would like to have seen a person of color as President Obama’s last pick,” the former Obama official acknowledged. “Six years later, there are many Black women that President Biden had to choose from who are very qualified — and it’s a different political environment.”
The former Obama aide also agreed the president was concerned that anyone he picked who failed to get through the Senate would be considered damaged goods.
“President Obama was hesitant to put anyone through this process in this particular toxic political environment [that might have] prevented them from being a candidate President Biden can choose today,” the former official said.
However, leaders like Arnwine and some Black members of Congress felt the 2016 high court vacancy gave Obama a big opportunity to remind Black voters of the importance of the Supreme Court in the looming election.
“They didn’t want to put a Black woman through the humiliation of being denied the opportunity on the bench with Republicans acting so badly and in such bad faith,” Arnwine said. “I said, ‘That’s why you need to do it.’ ... There was a tremendous difference of opinion and, again, that was the cause of some bitterness. ... We felt the administration made a huge error.”
Martin said the political advantages of such a move were evident.
“You’d be forcing these old, white men to completely ignore and dismiss a Black woman who was the most accomplished nominee in American history,” he said. “You put them on the defense. It’s a sign of gross disrespect that would piss off Black women and you would have a galvanizing issue for eight months to impact the election.”
Martin said that even if a Black woman nominee was snubbed by the Senate, there would have been considerable pressure on the Democratic presidential hopeful, Hillary Clinton, to pledge to re-nominate that person.
The debate became an academic in November 2016, when Clinton lost the presidential race to Donald Trump. Of course, Trump also had three chances to nominate a Black justice and chose instead to pick two white men and a white woman, but civil rights leaders said they never saw any sign that Trump was interested in racial diversity on the Supreme Court or lower ones.
Some Obama White House officials said they doubted Biden had significant influence on Obama’s Supreme Court choices in 2009 or 2010, because during that period the relationship between the two men was somewhat distant. However, Biden — a former Senate Judiciary Committee chair — was a key player in selling the nominees to his former colleagues.
Arnwine said she doesn’t recall direct interaction with Biden about the Black community’s dissatisfaction with Obama’s Supreme Court choices, but she finds it hard to believe no one brought that sentiment to the vice president’s attention.
“I can’t imagine there was a lack of awareness,” she said. “We were pretty aggressive in trying to pull the levers that we had. ... You would think that would have come up at some of their broader meetings.”
Biden’s 2020 pledge emerged from a commitment to the influential Clyburn as the congressman was considering whom to endorse in the days leading up to the South Carolina primary — a make-or-break test for Biden. When Biden failed to offer the pledge during the first half of a pre-primary debate in Charleston, Clyburn hustled backstage during a break and turned up the heat, Allen and Parnes wrote.
Minutes later, in an awkward response to a question about his personal motto, Biden made his commitment.
“Everyone should be represented,” Biden declared. “The fact is, what we should be doing — we talked about the Supreme Court. I’m looking forward to making sure there’s a Black woman on the Supreme Court, to make sure we in fact get every representation. ... Not a joke.”
Former Biden and Obama adviser Anita Dunn, who was serving as a top Biden campaign adviser at the time, said she doesn’t recall the Sotomayor or Kagan nominations being discussed when Biden was considering making his pledge to pick a Black woman for the court.
“It was much more in the context of the fact that it was time the Court reflected America more and that there were highly qualified nominees he could choose from,” Dunn said.
In his speech announcing his nomination of Sotomayor, Obama made no explicit mention that she would become the first Latina on the high court. (There remains some dispute about whether she is the court’s first Hispanic justice. Some say Justice Benjamin Cardozo, who served from 1932 to 1938, may have notched that accomplishment since his family claimed Portuguese roots.)
Some observers say the answer lies in part with Obama’s personal distaste for getting into that type of charged political debate.
During a 2016 visit to the University of Chicago law school, Obama boasted about the diversity of his appointments to the federal bench but seemed to ridicule the idea of reserving a slot for someone with a particular background.
“The way I've thought about diversity is not to think about any single seat as, ‘Oh, I've got to fill this slot with this demographic,’” Obama said. “At no point did I say, ‘Oh, you know what, I need a Black lesbian from Skokie in that slot. Can you find me one?’ I mean, that's just not — not how I've approached it.”
“I appointed a Latino woman and another woman right before that,” Obama told the law students as he defended his choice of Garland. “So, yeah, he’s a white guy, but he’s a really outstanding jurist. Sorry.”
