Consider This from NPR - In Supreme Court Nomination Debate, Echoes of Past Judicial Breakthrough

Episode Date: February 10, 2022

When President Biden announced that he would nominate a Black woman—the Supreme Court's first—to the seat that will be vacated by retiring Justice Stephen Breyer, criticism from some on the right began almost immediately. Senator Ted Cruz, R-Texas, said it was "racist" to consider only Black women for the post, and Biden's decision was "insulting to African-American women."The conversation about identity and qualifications echoes some of the questions that arose when another breakthrough appointment was announced more than 50 years ago. In 1966, Constance Baker Motley became the first Black woman to serve on the federal bench. Her identity and lived experience as a civil rights attorney loomed large in the debate about her fitness to serve. Tomiko Brown-Nagin, dean of Harvard Radcliffe Institute, and author of Civil Rights Queen: Constance Baker Motley and the Struggle For Equality, discusses Motley's nomination and her career. She says Motley supported the appointment of women and people of color to the federal judiciary as a way to strengthen the institution.In participating regions, you'll also hear a local news segment to help you make sense of what's going on in your community.Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Support for NPR and the following message come from the Kauffman Foundation, providing access to opportunities that help people achieve financial stability, upward mobility, and economic prosperity, regardless of race, gender, or geography. Kauffman.org. 115 people have served on the Supreme Court. 110 of them have been men, 112 have been white, and none has ever been a black woman. And with a vacancy coming up on the high court, President Biden promises his nominee will change that. That person will be the first black woman ever nominated to the United States Supreme Court. The White House says this is an effort to remedy decades of a flawed process and to help the Supreme Court look more like America. Almost immediately, some conservatives attacked Biden's promise to consider only black women in choosing a nominee. Take, for example, Republican Senator Ted Cruz of Texas, who called Biden's pledge racist. You know, black women are what, 6 percent of the U.S. population.

He's saying to 94 percent of Americans, I don't give a damn about you. You are ineligible. In fact, Cruz said Biden's vow to nominate a Black woman to the Supreme Court was actually, quote, insulting to African-American women. Then there's this from Republican Senator Roger Wicker on local radio station Supertalk Mississippi. The irony is that the Supreme Court is at the very same time hearing cases about this sort of affirmative racial discrimination. Yes. And while adding someone who is the beneficiary of this sort of quote. The pushback that has already erupted against Biden's Supreme Court nominee, specifically the criticism

that Biden is valuing identity over qualifications, got us thinking of a story that unfolded more than 50 years ago when the White House announced another path-breaking judicial nominee. The president said to me, well, we're going to announce your

appointment to the bench today. I said, today? Constance Baker Motley was the first Black woman ever appointed to the federal bench. You hear her there in the documentary, The Trials of Constance Baker Motley. He said, well, we don't have to do it today. I said, oh, no, it's all right. We'll do it today. I just, nobody told me. We wanted to understand the obstacles that confronted Motley on her path to confirmation in 1966, the perceptions about why she was picked and the critiques her detractors leveled against her. So we talked to her biographer, Harvard University's Tamiko Brown-Nagin. She had vast experience, was an excellent lawyer, clearly qualified for the post.

Nevertheless, she did face criticisms that essentially she was not qualified for the position. Consider this. The conversation today about Biden's pick echoes some of the same questions that emerged when the first Black woman was nominated for the federal judiciary. Constance Baker Motley's identity and lived experience loomed large in the debate about her fitness to serve and President Johnson's choice to elevate a black woman while under pressure to send a political message worked for and against her. It's a story that feels familiar today, more than half a century later. From NPR, I'm Elsa Chang. It's Thursday, February 9th. This message comes from WISE,

the app for doing things in other currencies. Send, spend, or receive money internationally, and always get the real-time mid-market exchange rate with no hidden fees. Download the Wise app today or visit wise.com. T's and C's apply. It's Consider This from NPR. First, let's be totally clear here. Presidents of both parties have made identity a driving factor

in their picks for the Supreme Court. Ted Cruz, whom we heard from earlier, had no complaints back in 2020 when President Trump said quite plainly that he would choose a woman to fill the vacancy left by Justice Ruth Bader Ginsburg's debt. I will be putting forth a nominee next week. It will be a woman. And how about back in 1980, when then-candidate Ronald Reagan promised to name the first female Supreme Court justice in an attempt to attract the women's vote? I'm announcing today that one of the first Supreme Court vacancies in my administration

will be filled by the most qualified woman I can possibly find. And after selecting Sandra Day O'Connor, Reagan tapped Antonin Scalia for the high court, in large part because of his Italian background. And then there was President George H.W. Bush. Even though Bush said publicly that race played no role in Clarence Thomas's appointment, his staff told the Washington Post at the time that Bush focused almost exclusively on, quote, minority or female candidates. When Constance Baker Motley was nominated to the federal judiciary, her identity mattered a lot to both critics and supporters, just as it does today with Biden's forthcoming nominee.

In 1966, when President Lyndon B. Johnson decided to nominate Motley to the U.S. District Court for the Southern District of New York, civil rights leaders all over the country praised the choice. And that is exactly what Johnson was going for. Johnson wanted to prove that he was a strong supporter of the civil rights movement. That's Tomiko Brown-Nagin of Harvard University. Her biography of Constance Baker Motley is called Civil Rights Queen. Brown-Nagin says there was a clamor for the Johnson administration to place highly qualified black candidates in top positions. And Motley had sterling credentials. She had been a high-profile civil rights lawyer. She wrote the original complaint in Brown v. Board of Education.

She had served in the New York State Senate and was Manhattan Borough President. Johnson vetted Motley thoroughly, and she got rave reviews. All of them said the same thing, that she would be a terrific addition to the bench because of her skills and qualifications. And at the same time, she would be a breakthrough appointment. A breakthrough appointment. And yet, it was Motley's identity as a Black woman and prominent civil rights lawyer that led some Democrats to wonder whether her nomination would be too politically risky. Her race was specifically mentioned as a drawback when President Johnson initially wanted to appoint her to the U.S. Court of Appeals. There were people behind the scenes who suggested that it would look too political to appoint Motley, an NAACP lawyer, black lawyer, to the bench, while at the same time appointing

Thurgood Marshall as Solicitor General. There were those who assumed that because of her race, sex, or her practice background, she could not, quote, be fair in discrimination cases. And then I will also mention that repeating a pattern, the ABA rated her merely qualified as opposed to highly qualified. The American Bar Association, right. Yes, the Bar Association claiming that she lacked trial experience in New York, which was remarkable because she had litigated all over the country. Including being the first black woman to argue in front of the Supreme Court. That's correct.

Constance Baker Motley argued and won nine of 10 cases that she argued before the Supreme Court. And those cases were landmark cases across a number of areas from civil protests to school desegregation to the right to counsel. Meanwhile, the man who would preside over Motley's confirmation hearing

was adamantly opposed to the choice of Motley. Senate Judiciary Chair James O. Eastland, a plantation owner from Mississippi, openly defended segregation. He had called black Americans, quote, an inferior race. And Motley's work as a civil rights lawyer hit close to home for him when she represented James Meredith in his successful effort to desegregate the University of Mississippi. When she was litigating those cases, of course, she was upsetting the status quo. And there were those, including Senator James Eastland, who was the chair of the Judiciary Committee, who were not going to let the black

woman who had essentially killed Jim Crow at his alma mater, Ole Miss, just slide to confirmation that wasn't going to happen. And so, Brown-Nagin says, he leaned on a strategy he had used before against other nominees. He accused Motley of being a communist. It's uncontroversial to say that his motives were related to race and to Motley's career as a civil rights lawyer. It was a pretext that he used on many occasions to besmirch people who were involved in the civil rights movement. The smear campaign didn't work. After a seven-month delay, Constance Baker Motley was finally confirmed on August 30, 1966, and she became not only the first Black woman appointed to the federal judiciary,

but also the first woman appointed to any federal district court in New York City. I wanted to understand how Motley thought about that identity when it came to her role on the bench. I want to talk about what judicial diversity meant to Motley, because what's interesting that I learned in your book is that she disagreed with this idea that women brought an important perspective to the bench simply by virtue of the fact that they were women. Why was that? Motley supported the appointment of women and people of color to the federal judiciary. She championed it, not necessarily because these individuals would rule differently than a white

man. Rather, she pointed out that these appointments would strengthen American institutions. They would show that the equal opportunity existed in America. Of course, this is a principle for which she had fought for so many years. So do you think if she were asked whether being a black individual brought an important insight to the bench. How do you think she would have responded? I'm certain that Motley would say she had a set of experiences and a background that was relevant to her perspective on the world, and yet she specifically rejected in a case, a famous case, Blank v. Sullivan and Cromwell, where the attorney for the defendant law firm argued for Motley to remove herself from the case based on her practice background that she would not do so. She rejected that argument, turning it on its head,

saying that if background or experience alone were bases for the removal of judges from cases, then no judge on the court could hear the case in question, which was a sex discrimination case. In other words, she is making the argument that all people, all of us, including white men, have a race and a gender and background and experiences, and those should not be per se disqualifying. In other words, your identity is not inherently judicial bias. Exactly.

Well, I want to now fast forward to today and the conversations that we are hearing while anticipating President Biden's forthcoming announcement on who he will nominate to the Supreme Court. Do you see, as a historian, a legal historian, do you see any parallels between criticisms against Motley's nomination back in 1966, and criticisms we're hearing today against President Biden's decision to name a black woman to the Supreme Court. I do think that Biden's commitment to a large extent reflects ordinary politics. A number of presidents have leveraged Supreme Court nominations in ways that appeal to interest groups. And so to the extent that people are arguing that this is unusual, that is not true.

Now, I've also heard some comments that sound like the qualification argument that was made broadly against Constance Baker Motley. And so, yes, we hear what I would call racial scripts that are familiar in our deeply divided political environment. But ultimately, I think that this nominee will be confirmed by virtue of simple math. And some Republicans have said that they would be delighted to support a qualified African-American woman nominee. But first, she has to run the gauntlet. Do you feel it was ultimately a good idea for President Biden to publicly announce that he would pick a black woman as the new Supreme Court justice to make such an explicit promise? There are women on that shortlist whom I know, they're in my professional

and social networks, and I care about them. And I can imagine that some of these women will have been defined by their race and gender in ways that were unfavorable at some point in their lives. And at this moment, I would like to emphasize their achievements. And for those who find it difficult to appreciate that one can both have an identity and be eminently qualified, then to that extent, perhaps it wasn't a good idea. But as I said, Elsa, this move by Biden mostly reflects ordinary politics. That's Tamiko Brown-Nagin, Dean of Harvard Radcliffe Institute. She is the author of Civil Rights Queen,

Constance Baker Motley, and the Struggle for Equality. It's Consider This from NPR. I'm Elsa Chang.