Paul Gallo: The Supreme Court justices, your thoughts on that.
Kai Wright: When asked about President Biden's vow to nominate a Black woman to the high court, Mississippi Senator Roger Wicker had this to say.
Senator Roger Wicker: We’re going to go from a nice, stately, left-wing liberal, to someone who’s probably more in the style of Sonia Sotomayor.
Kai: From nice and stately to a woman of color? That's not even the part that got the good Senator in trouble. He went on to call the as-yet-unnamed nominee and affirmative action hire. Strap yourselves in folks because this whole nomination process is going to be a lot.
Regina de Heer: It's Black history month and Joe Biden has made a commitment to nominate a Black woman to fill the upcoming vacancy on the Supreme Court. Have you heard that news?
Alexandra: I haven't heard that actually.
Jodi: This is my first time hearing about it.
Regina: What would it mean for you to have a Black woman on the Supreme Court?
Jodi: It would mean a lot in terms of representation.
Alexandra: I think it's definitely important for representation in the Supreme Court, especially in a place where justice isn't really served for minorities, and I guess I'm excited to see where that goes.
Ash: I think it's about time that a Black woman is on The Supreme Court. However, I'm not going to say that I agree with Joe Biden announcing it. It could be said be the affirmative action appointment or something which would diminish her effectiveness.
Jodi: I feel like it would mean more if change were to actually come with that, so that's what I would hope to see.
Kai: Welcome to the show. I'm Kai Wright. The conversation about President Biden's pending nomination to the Supreme Court is still pretty much inside politics as you just heard when our producer Regina de Heer roam the streets to get a reaction to the news that Biden is going to nominate a Black woman. Most people didn't even know what she was talking about, and those were Black women she was talking to, I wish I should say, but that's to be understood. In our nation's constitutional design and in our political culture, generally, the court stands apart from us, above us even, it's the high court.
Its distance is an illusion. the Supreme Court intimately touches our daily lives, just ask any woman seeking reproductive healthcare in the state of Texas today. Any Black woman has never served on it. Only three people of color of any sort have ever served on it actually. 112 white people, I think 109 of the men have had the final say on what society we inhabit. That is self-evidently the result of a racial and gender quota. One that was once stated openly and then preserved through custom and innuendo and degradation of people like Sonia Sotomayor and like the as-yet-unnamed Black woman who is already being dismissed in some quotas as unqualified.
Whoever gets named this nomination is likely going to become a fight over race and gender and power. I expect by worry, I hope I'm wrong, that it will get ugly. I am just trying to get my own mind ready. Tonight, we will have two conversations to help in that regard. Later in the show I'll be joined by Elie Mystal, the justice correspondent for The Nation magazine to talk about the political dynamics of the court and the nomination process. Right now I am joined by Fatima Goss Graves, who is president of the National Women's Law Center, where she has spent more than a decade working on behalf of women's rights and thinking particularly about women and girls of color. Fatima, thanks so much for joining us.
Fatima Goss Graves: Oh, I'm so glad to be here.
Kai: Well, let's start with the obvious question, to me at least. What does this coming appointment mean to you personally as a Black woman in the law who has spent her life trying to make legal space for women of color?
Fatima: Well, I should just begin by just saying I'm excited and I feel a lot of pride to even be in this moment. I'm excited every time I see another name out there, another Black woman attorney who's being introduced to the country whose record and contributions and credentials are being highlighted in part because of all the many talented Black women attorneys I know whose work and whose views and whose credentials are pretty routinely overlooked and unnamed. I also feel like as I've been reflecting on it more these last two weeks, it's just so long overdue. I've been thinking how is it that it is '22, and we even have a question of whether or not a Black woman should be on the Supreme Court.
Kai: You clerked in the US court of appeals in the 7th Circuit. What did you see in terms of how often there were Black women on the bench or really anywhere in that space?
Fatima: I was lucky enough to clerk on the 7th Circuit when there was one Black woman on that court, and she was the first. Actually, when she stepped down during the Trump year, she was replaced by a white woman, and so for a number of years, there were no Black people on the 7th Circuit where I clerked, which includes Illinois, Wisconsin, and Indiana. When I think about the fact that the city of Chicago, for example, is a part of the 7th Circuit, the idea that there would be no Black women on that court, it's outrageous. I also just want to name when I was a law clerk at the time, for more than half the time that I was there, there were no Black women clerks clerking for other judges.
It could be a really isolating and lonely experience to be working as a part of our judiciary system both back then, but back now there are still whole courts of appeals, like the Supreme Court that have no Black women on the court.
Kai: Why does it matter? More broadly, why do representational politics matter at all? I can't imagine, for instance, maybe I'm making some assumptions here, but I can't imagine you've been thrilled with Clarence Thomas' role in the Supreme Court, for instance, and he is Black. Why does representation matter?
Fatima: I will say 30 years ago the National Women's Law Center cautioned the country and the judiciary committee about his nomination and were disappointed when he was confirmed and many of our predictions came true, but I really believe it is critical for a couple of reasons. The first is that even though we don't usually talk about it in this way, judges bring their individual experiences and ideas to their decision-making. They just do, and so the fact that there are no Black women on the Supreme Court really matters.
It means you are missing out on the perspective of having been a Black woman in this country on the court, but it also is a thing that can build trust in our systems. It can give more confidence in the rule of law. When I think about all the Black women who touch our legal system, who touch our federal judiciary, it raises an alarm that we've had now hundreds of years where they haven't been there. You mentioned reproductive rights in this country, the court this year is considering whether or not to overturn Roe versus Wade, and there will be no Black women who are a part of that decision-making.
Really no Black women who are part of it at all arguing the case or considering the case, even though Black women are twice as likely to die from childbirth. It does mean a lot to have a court that is representative. It is not everything, and that is why the record of whoever this person is that's nominated will have to be carefully considered, but what was important is that President Biden started there. He started with the fact that he planned to nominate someone of the highest caliber who brought a particular type of outlook on the law, and that person would be the first Black woman to be confirmed to the Supreme Court.
Kai: As you heard, one of the people we heard in the introduction to the show said she wished that Joe Biden had not made that vow to name a Black woman because it just set her up for an attack on her qualifications. I think many Black people certainly eye many women of all sorts can relate to the experience of being perceived as having gotten our opportunities only because of our race, or our gender. I don't know why make that declaration. Do you think that was important for him to say rather than just do?
Fatima: Well, what's interesting is those sorts of declarations that you plan to make history are declarations that have been made before, that President Reagan made a declaration that he planned to make history by appointing the first woman to the Supreme Court and then followed through on that promise with Justice O'Connor and President Trump said that he had planned to appoint a woman to replace Justice Ginsburg when she unexpectedly passed during the election. He did, he followed through on that promise. I'm not sure why people are surprised by that, but it is a history-making thing that he plans to do.
I actually think back to someone like Judge Constance Baker Motley who was the first Black woman to argue at the Supreme Court, and she was the first Black woman to be confirmed as a federal judge. Again, and again, she was overlooked for courts of appeals seats because they weren't sure whether they could take the political risk of appointing a Black woman during her time. The fact that the president named it and actually reaffirmed it without hesitation when he had the opportunity, it actually says a lot about where we are as a country who we are as a country, that actually is really exciting for me.
Kai: Well, if I made say, it also says a lot about where we are politically, where the Democratic Party is politically. My answer to that question is, I wonder if he hadn't been forced to make this campaign promise, and it was a campaign promise at a time when he desperately needed Black voters, I wonder if we would be here now.
Fatima: I'm not sure, we won't ever know that. It actually is the case that Black women's participation in our democracy has been talked about. Lots of people think and Black women all the time. In this movement, this is an opportunity to actually bake a giant barrier to Black women on the court. That feels like a really big thank you and something that, in some ways, I wasn't super surprised that you were interviewing people who were saying, "I hadn't heard that." That's interesting news.
I think once we actually have a nominee, this person will be introduced to the public and Black women who are lawyers like me, but Black women generally will be excited, I think women will be excited. I think people in this country will be proud that we are a country that are breaking this barrier.
Kai: What is the mood among Black women who are lawyers like you is, "That's everybody on the streets? Wait, what? I don't follow the news like that." How would you characterize how it's been received?
Fatima: I will just say it's joyful. My text threads are blowing up with us naming our fantasy Supreme Court. Actually, some of it has been really emotional, though. People telling stories, reminding themselves what law school is like. Reminding ourselves of how we didn't have those heroes to look up to. I really have been focused on all the Black women over time of why weren't they on the Supreme Court? Why wasn't Marian Wright Edelman on the Supreme Court? I just feel this country has lost out on talent because of racial bias, because of gender bias.
We are so lucky that the President put it on the table and reaffirmed it, it may have been a political win for him, but it is good for this country because he's not going to go against that promise. We're going to get to see the many talented Black women who shouldn't have been considered before and we're going to get to learn about those in our histories, Black History Month, so it's time for us to actually do a little bit of learning about them too.
Kai: Creating some of it. We'll take a break. I'm talking with Fatima Goss Graves, president of the National Women's Law Center, about the coming debate over President Biden's nomination to the Supreme Court. She has not yet been named, but the President vows she will be Black. Stay with us.
Kousha: Hey, everyone, this is Kusha. I'm a producer. In this episode, you hear us asking for calls from listeners about the pending nomination and the debate it's ignited. We want to hear from you too. Particularly we want to know if you're a Black woman how does this news strike you? Does it mean anything to you? Why or why not? We'd love to hear your perspective. If you could send us a message, voice memos are great, and emails and videos work too. You can record yourself on your phone and email it to firstname.lastname@example.org. Again, that's email@example.com. Thanks so much. Talk to you soon.
Kai: Welcome back, I'm Kai wright. I'm talking with Fatima Goss Graves, president of the National Women's Law Center about the already lively debate over President Biden's nomination to the Supreme Court. Shortly, I'll be joined by Elie Mystal justice correspondent for The Nation magazine. We can take your calls throughout if you've got a question about the pending nomination and the debate over it. Fatima, I have to say, I was thinking during the break about what you said right before we went on break about we've missed out on the opportunity, missed out on the talent of Black women because of this.
I thought, "Boy, what an important reframing." I'm almost ashamed of myself. We run into the fight, we want to engage the critique of the idea that a Black woman would be on the Supreme Court. It's kind of buying into the fact that it would be a problem in the first place, I don't know, I just throw that to you about the challenge of that, of this discourse of saying, "I want us being ready to defend Black people in general, and a Black woman in particular in this moment." But also then letting that eat the joy of the moment.
Fatima: I should be clear that I stand ready to defend whoever she is from attacks that are racist, or sexist. Whether they come from Capitol Hill or from political organizations, or whether they're repeated by the media, none of that is okay. I'm also not letting them ruin my joy. I just can't. I feel so lucky to be living in a time where I get to celebrate the first Black woman on the Supreme Court.
When I came out of law school, I got to say, I wasn't sure that was a thing that was going to happen in my lifetime, it didn't seem possible. Part of it is that you keep seeing the same thing, and now girls who are coming up, they're going to know that it's possible. They're not going to think it would be impossible for me to be on the Supreme Court. No one's really taking a mind tour right now.
Kai: The person getting the most attention right now, it seems like is the likely nominee is Judge Ketanji Brown Jackson, who currently serves on the US Court of Appeals for DC, which is considered the second most influential court below the Supreme Court. What can you tell us about Judge Jackson?
Fatima: Well, Judge Jackson has been a judge for a while she was on the district court in DC before being confirmed just last summer. I will tell you, she was confirmed with support of some Republicans so she's already had a bipartisan confirmation within the last year. People who know her well describe her as brilliant and unmatched in her intellect. She went to Harvard for both undergrad and law school and was someone who people had hoped maybe President Obama might put on the Supreme Court when he had an opportunity. She's not a stranger to the work and is one of the examples of really wonderful people to be considered for this.
Kai: How would you describe her judicial temperament? Where would she fit in the lexicon that that most of us who aren't lawyers know about the range of what we've seen from Supreme Court justice? How would you characterize her?
Fatima: Well, people describe her as thoughtful. They describe her as considered opinions. She also brings an experience that the court doesn't have right now where she's formerly a public defender and so her understanding of the criminal system at a time where people are thinking hard about the criminal system is really really important. I think Judge Jackson is someone who the country's just now getting to know. People who practice before her though, regard her very highly and have known her for a long time, so some of this insider stuff.
I think we're now being really introduced to her in ways that are wonderful. I actually really liked that she isn't by herself, that there are other names that are being considered too. I think that's important because it just reminds people that the President could appoint all nine if he had the opportunity as Black women, and there'd still be a long, long list.
Kai: Let's go to Joanne in Toms River, New Jersey. Joanne, welcome to the show.
Joanne: Yes, hi. Is this Kai?
Kai: This is Kai.
Joanne: Oh, Kai. I love you. I really enjoy your show.
Kai: Oh, thank you so much, Joanne. Did you have a question about the court or a feeling about one way or the other? Go ahead.
Joanne: Yes, I did. My feeling is this and I respect James Clyburn, but he put pressure on Biden to make that announcement. I really regret that because now he's given these haters time to build their case against whomever he's nominating, you know what I mean? I just feel that they're so against Biden, you know what I mean? It's like, it's not going to be her, it's going to be him that they're going against, and they're going to put whomever he chooses through the wringer because now they got time to comfort with themselves and how they're going to attack.
Kai: I see. Thank you, Joanne.
Joanne: I hate to say that, but the human species is a strange species.
Kai: Well, we certainly got a lot of evidence of that lately. Thank you, Joanne, for calling and for listening. Fatima, how do you want to respond what Joanne had to say?
Fatima: Well, one of the things, Joanne, to think about is no matter when he made this announcement, even if he boomed surprise people, and it was a Black woman, they would have brought the same attacks. That's what we've seen of the nominees who have come forward. Some of it is like the subtle dog whistles and some of that has been really outrageous and over the top. Each time, I think we have to just remember that these women didn't bring it on themselves. We have to beat it back as soon as it happens and remind the public or whoever is loving these attacks, that it's okay that we're watching, that we don't stand for it, and then we have to just remind ourselves that the words that they are spewing, are not reality.
They can call judge Jackson or whoever it is whatever name they want, we will beat it back, and then we will sit understanding how lucky we are as a country, that these are people who are willing to serve.
Kai: Let's go to Michael in East Harlem. Michael, welcome to the show.
Michael: Hi, there. Thanks for taking my call.
Kai: Do you have a question or a reaction?
Michael: Yes, I have a comment. I'm Black. Well, first of all, let me say, I know that there are tons of qualified Black women, as you guessed just said, there are enough Black women to fill the Supreme Court, and then some, tons are qualified. However, I don't think that Biden should have said that he was going to nominate a Black woman. I think he should have just nominated a Black woman. The Republicans are leveling all this criticism against this yet-to-be-named nominee and it's ridiculous. I think part of it is because he said that he was going to nominate a Black woman.
Secondly, I think it puts an asterisk or takes-- It's not fair to the woman who's been nominated. You know what I mean? I think he should have just nominated a Black woman and then we go from there.
Kai: Thank you, Michael. You can hear from callers and what we saw when our producer Regina went out in the streets and just a lot of folks saying, are really worried about the way this has been framed.
Fatima: Can I just offer one thing? Over time, people didn't announce that they were only going to nominate white people to the Supreme Court and then make public statements. President Trump didn't announce that he was going to only nominate white people to courts of appeals and nominate no Black people to the courts of appeals over a four-year period. I don't give credit to not saying your intention. I actually think it is important that President Biden was announcing that he planned to make history here and it is exactly what he's going to do.
Kai: Fatima Goss Graves is president of the National Women's Law Center, thank you so much for this time and for your insights on it.
Fatima: Thanks for having me.
Kai: We'll take a break, and then continue our conversation about President Biden's pending nomination of a Black woman to the Supreme Court. I'll be joined by Elie Mystal, Justice Correspondent of The Nation magazine, and we'll take more of your calls. Stay with us.
Welcome back, I'm Kai Wright. I'm joined now by my friend and colleague, Elie Mystal, he's the Justice correspondent for The Nation magazine, a regular on our show and now author of the forthcoming book, Allow Me To Retort a Black Guys Guide To The Constitution. Elie.
Elie Mystal: Kai, how are you?
Kai: Well, if we're honest, you've never actually been asked for permission to retort, Elie, I don't know about the title of that book.
Elie: Speaking of can I retort to the last few callers on your program?
Kai: Please, go ahead. Yes.
Elie: In the words of Lady Macbeth, could we please people screw our courage to the sticking place because the idea that Biden would just surreptitiously spring a Black woman on Republicans, and that would somehow make them be nice to her is ridiculous. Have you people met Republicans? Have you people met white people? There is nothing that you can do. The kinds of white people who have a problem with a woman of color on the Supreme Court, there is nothing you can do to appease these people. I can prove that because you just have to look at what these people said about Sonia Sotomayor.
Every single attack usually from that same people, by the way, that they're making against the potential Biden Black woman nominee, is in fact an attack that they leveled against Sonia Sotomayor when she was nominated by Barack Obama. The same thing, she's not as smart, it's an affirmative action appointment. She doesn't have the qualifications. The exact same things, sometimes from the exact same people. Wake up. There was no way to appoint a Black woman to the Supreme Court in a way that would appease the kinds of white folks who have a problem with that.
We just need to understand that and get ready to defend the nominee and defend the rights of non-white people to hold power in this country instead of constantly complaining and whining about the optics of this thing or that thing. It's go time.
Kai: It's very similar, I said at the beginning of the conversation with Fatima, that most of us, many Black people, and many women can relate to the experience of being told that you have your opportunity only because of affirmative action. What you've just said is the response that I heard much in my life from my parents. That is beside the point, they're going to think what they're going to think, you need to move on. That does register. Let me ask you this, what do you say would be the legacy of Justice Breyer? We've been talking about who's coming, but he's who is stepping off? What is his legacy when it comes to racial justice and women's rights?
Elie: There are two things about Breyer. One, the man has served for 28 years with honor and integrity throughout his time and I emphasize that word integrity because I can't say that about all those people on that court, especially right at this moment. Breyer has never had a hint of scandal. He has never had a hint of corruption. He has never had a hint of graft. He has been an upright, upstanding person who did not just have the professional and academic, and intellectual qualities to be on the Supreme Court but had the moral character to be on the Supreme Court. I think that he should be praised and remembered for that. He was moderate.
He was more centrist than I would have been especially on some issues of criminal justice, especially on some issues of the 4th Amendment and of illegal search and seizure, some of those issues, he tacked it towards the center on those positions but you know what? He has been since he has been on the court, probably the strongest advocate against the death penalty, the most outspoken justice against the death penalty, even amongst the other liberals I don't think we can forget that. He's been a reliably solid liberal vote at a time when the court has lurched towards the right in really shocking ways if you look at it historically. He's been a reliable voice, he's served with integrity. I think that's how he'll be remembered.
Kai: Let's go to Hady. Hadley, I'm sorry, in Lubec, Maine. Hadley, welcome to the show.
Hadley: Hi there.
Hadley: Joe Biden made this statement, "We're going to bring a Black woman to the Supreme Court." I'm totally for that. I fear the Senate is going to argue and debate this down and they're going to use the old argument of affirmative action, and I'm just like, "I feel like those protections, we are not there yet." We have to keep these protections in place because if not, then people can't evolve and they can't move forward. I'm worried about this. The Supreme Court to me is not the only representative of the country and what's going on. It would be a blessing to have a Black woman there, especially in light of what's going on in Texas, in Florida, and all of these majority southern states with other states following suit.
Elie: Hadley, let's separate out two different things here. There's the argument about affirmative action, which is a case the Supreme Court will be taking up next year, specifically with college admissions. We can talk about affirmative action either about college admissions or just throughout society as kind of put that off to the side for a second. The nomination of a Black woman to the Supreme Court is not affirmative action. That is not what that is. That is looking at an underrepresented group of people and saying, "From this, we are going to pick the most qualified person to be on the Supreme Court. We're going to focus on this underrepresented group as we look through all options."
When it comes right down to it, I don't know how many people you guys out there think are qualified to be on the Supreme Court. From where I sit, in the country of about 330 million, I guess like a million people at least could do that job. It's not nearly as hard of a job as people think it is. It's harder to be an astronaut. It's harder to be a brain surgeon than it is to sit on a court and be told what the law is by your courts and other lawyers and make a decision about which way to go. It's really not that difficult. Of the million or so people who could be on the court, all Biden is saying is we have to make decisions some way, we're going to focus in on this group.
If we just focus on this one underrepresented group, I promise you this, most people will not have a better resume than any of the people that Biden's going to put up. You can only have an as good resume as most of the people that Biden is considering. You don't have a better one than that. I also promise you that if it's one of the people that we've been talking about, Ketanji Brown Jackson, Leondra Kruger, somebody like that. I promise you this. She's going to whoop your butt on a test. She's going to whoop mine too. If you want to put some kind of legal test in front of her, some kind of LSAT in front, she's going to whoop people's behinds on that standardized type of test. This is not--
Kai: Let me ask you about one of the people that's being discussed. One of the people on the shortlist that we're hearing about is Judge Michelle Childs, who sits on the District Court for South Carolina. She's already getting meaningful pushback from the left. Both for her record on labor issues and on criminal justice. Of course, at the same time, she's Representative Jim Clyburn's top pick, which is not a trivial matter for Joe Biden. Apparently, Lindsay Graham is prepared to get behind her.
This could get sticky in terms of her ability to be a bipartisan pick, but not be someone that a lot of folks on the left can get behind. You warned in a recent column that liberals must not do exactly this kind of thing. Getting back to the representational politic question isn't that exactly the problem or the danger with focusing on representation? Is that you may or may not get somebody who has the policy outcome you're looking for.
Elie: Yes. Being Black is not a proxy for being liberal, leftness, progressive, or whatever you want to call it. There are lots of moderate Blacks. There are lots of Black people who defy labels. Look at the current mayor, Eric Adams. Put him in a box, if you dare, because he's going to challenge your assumptions. Being Black is not a proxy for their policy preferences. Being Black is a proxy for African-Americans. That's what it is. It's a proxy for, "Your group has been underrepresented in our country in the halls of power for various racist and sexist reasons."
That's all it is. Amongst the Black people that he could choose, I hope he chooses somebody particularly left. I hope he chooses somebody particularly progressive. Unfortunately, I ain't Joe Biden. Joe Biden does not have a history of going out there and finding the most radical person, the most leftist person than he can for a job. He's probably going to pick somebody that's sensor mass, mainstream, slightly left of center. That's his idea of the country. That's most likely who he'll pick. The fact that they're Black doesn't make them more left.
I don't know why people sometimes think that it does. It doesn't. In the same way that I was saying about Stephen Breyer. Been on the tack towards the moderate side of the aisle. Tack towards the center of mass of the country, as opposed to maybe a Leondra Kruger who's a little bit more on the left side of some of these debates. Biden ain't going to nominate me. [laughs]
Kai: He sure ain't, Elie. He sure-- [laughs]
Elie: Just because the person is Black doesn't mean they're going to be this flaming liberal. I'll say another thing, Biden's sensibility here is not all that different than your boy Barack Obama's sensibility here. I for one, happen to think that Obama did not know what he was getting in Sonia Sotomayor. When I looked at her cases, when I looked at her jurisprudence on the 2nd Circuit Court of Appeals. That's the one that covers New York and our neck of the woods.
She presented to me as somebody who was going to be quite moderate and quite centrist. Then Sotomayor got a lifetime job, put on the red nail polish, and said, "Let's go." [laughs] Has turned into the now lion of the left side of the court.
Kai: She may have changed by the facts on the ground.
Elie: Sometimes it's facts on the ground, sometimes-- This is I think something to remember, in general, people who want this job, one of these nine jobs, understand that you got to be within a very small box to get one of these jobs. The people that Biden is considering have put themselves in the running by staying within the box. We don't know exactly how they're going to be. Nobody knows exactly how they're going to be once the box is removed and they're on the court for life. We just don't. That has happened to Republicans quite frankly more often than Democrats.
You've got your David Souter, you've got your-- You've got people who looked like they were going to be one way, but then once they got on the court-- John Paul Stevens, a former big liberal lion justice, he was appointed by Nixon, he was appointed by Ford, I mean. The people who wrote the opinion for Roe V. Wade, Harry Blackmun, he was appointed by Nixon. This stuff happens. Keep that in mind as people are pouring through the histories, qualifications, and resumes for any of these justices. We don't know exactly how they're going to be once they get on the court.
Kai: All right. We're going to go to Paula in Manhattan. Paula, welcome to the show.
Paula: Okay. Hello. Thank you. I'm not a Black woman. I'm an old Jewish woman.
Paula: I think I still qualify to talk.
Paula: I want to know why there was not an outrage and everything else. Trump said he was going to nominate people who were going to get rid of Roe V. Wade. I'm not absolutely sure of the language. I don't want to be a little long here, but it was definitely that he was going to appoint conservative judges. Certainly, the implication was that they were going to be against Roe V. Wade.
Kai: Thank you for that, Paula.
Elie: Paula, not just the implication. You said it exactly right. Remember, Trump is not a person who's particularly eloquent when it comes to his word choice. He said he would only appoint justices who were against Roe V. Wade. Josh Hawley, Senator on the Senate Judiciary Committee said that he would only confirm judges who were against Roe V. Wade. This should have been a huge thing, because while people are criticizing Biden for saying what kind of person in terms of their gender and ethnic background he's going to support, Trump was straight up telling people what person they were going to support in terms of political decisions they would be expected to make once they go on to the court.
Why wasn't that a bigger issue? Paula, I'll do you one better. Why wasn't it a bigger issue when Trump said, and I quote, "I want to appoint a woman to replace Ginsburg?" We're now suddenly concerned about gender politics, identity politics. Trump said-- Literally, people forget this, during the Brett Kavanaugh hearings, when he was alleged attempted rapist-- With all that information was coming out, there were people inside the Republican party saying, "Call Kavanaugh back, put up Amy Coney Barrett." She was right there, they loved her on the right, and Trump said, you can go find this online, Trump said, "I'm saving her for Ginsburg. I'm saving her for Ginsburg." That's what he said.
Another thing, Paula, let's go back to your boy, Ronald Reagan, he said during the campaign that he would nominate the first woman to the Supreme Court. Where was the outrage about gender politics back then in the 80s when Reagan promised and then did appoint a conservative woman to the Supreme Court? Where was the outrage when George H. W. Bush after the death of Thurgood Marshall, went out and found the most conservative Black man he could find? Clarence Thomas is way more conservative than a white judge that Bush could have gotten through that time, but because he was Black, people will say, "Oh, Okay."
Kai: On that point, let's go Kate in Washington Heights. Kate, welcome to the show.
Kate: Hi, thanks for taking my call. Can you hear me?
Kai: We can.
Kate: Okay, great.
Kate: Are there any conservative-leaning Black women that Biden would consider nominating, and who are they?
Elie: No, I just don't think--
Kai: No, there aren't any, or no there aren't any that he would consider nominate?
Elie: No, there aren't any that you would consider nominating, I don't think. You got to remember, for the most part, where do we get Supreme Court justices? Well, we get them from the lower courts, the courts of appeals, and the district courts. Donald Trump was the first president since Richard Nixon to appoint 0 Black people to the lower courts, 0. 85% of his appointments were white, 0% were Black, and 75% of his appointments were men, and he made a record number of appointments in his first four years. The bench for Republicans, the bench of conservative-leaning people of color, just isn't there because those guys won't do it.
It really is the Republicans who seem obsessed with race and gender when it comes to their appointments, that they just don't appoint people of color and women. Really, the most conservative person of color they have on their side is crazy person Neomi Rao. She's a former Clarence Thomas clerk, has really, I think awful writings from school about victim-blaming when it comes to rape. She's written about, "Why are you wearing lipstick then?" That level of grossness. She's come out-- She has a law review article where she advocates dwarf-tossing, like literal dwarf tossing as a constitutionally acceptable proposition. She's one of those people.
She's on the DC Circuit Court of Appeals, the same court as Brown Jackson, as on the same court that Merrick Garland came from, the kind of feeder court for the Supreme Court. She's their main woman of color that they promote in their circuit.
Kai: Let me push you on this though, Joe Manchin and Lisa Murkowski, were on CNN this morning together, both saying what has been characterized as reasonable-sounding things, it seems to be they were, about they're happy to support a Black woman as long as they get bipartisan support, which sounded like maybe a plug for Judge Childs to me. The question is, do you see anyone that he would appoint that could get Republican votes?
Elie: Yes. Ketanji Brown Jackson was confirmed at the beginning of Biden's term to the DC Circuit Court of Appeals with 53 votes. All 50 Democrats that included Sinema and Manchin, whatever their handlers do to those people so that they could vote with the Democrats that time and they got the votes of Susan Collins, Lisa Murkowski, and Lindsey Graham. That's who Brown Jackson got.
Candice Jackson-Akiwumi, a Black woman appointed to the 7th Circuit Court of Appeals, 53 votes; Collins, Murkowski, and Graham. There's no reason why Brown Jackson or Jackson-Akiwumi shouldn't get Collins, Graham, and Murkowski again. They might not because those people are dripping flaming hypocrites, but if they weren't dripping flaming hypocrites, there'd be no reason to think she want to get those same 53 votes that she got last time. Look, call me naive, and you can have me back to make fun of me if I look like an idiot, but I don't actually think this confirmation battle is going to be all that hard because Biden can literally pick from a couple of people who these Republicans voted for less than a year ago.
Kai: I'm going to stop because we're running out of time. I want to give Juliet in Newark, New Jersey, the last word. Juliet, welcome to the show.
Juliet: Yes. Kai, good evening. I'm so grateful to be on. I want to say to your guests, you have blown me away. I agree with President Biden, with being honest, saying that he wants to pick a Black woman to be on the Supreme Court, because I know there's a Black woman out there, among all the others that could go on the Supreme Court and stand up on her own. Stop labeling us, we may be Black, but we are educated. We are smart. This is what people don't want to realize. Don't judge me by the color of my skin.
Kai: Juliet, thank you so much. Go ahead, Elie.
Elie: Can I spin-off to this? One of the things is that I think that-- Look, I come from the Kermit the Frog School of Supreme Court nominations. I want more dogs and cats and bears and chickens and frogs and things, more. I want the Supreme Court to look more like America, and I can't do that with nine. One of the reasons why I'm in favor of court expansion is that we need the first Asian American on the court. We need the first Indian American on the court. We need the first openly gay American on the court. We need more on the court.
Kai: Pack those courts. Elie Mystal, pack those courts is your claim to fame, and I hear you. Elie Mystal is the justice correspondent for The Nation. His new book is called Allow Me to Retort: A Black Guy’s Guide to the Constitution. Thanks to all those who called in. You can keep coming at us at firstname.lastname@example.org. The United States of anxiety is a production of WNYC Studios. Our theme music was written by Hannis Brown and performed by the Outer Borough Brass Band. Sound designed by Jared Paul. Milton Ruiz was on the boards for the live show. Our team also includes Emily Botein, Regina de Heer, Karen Frillmann, and Kousha Navidar.
I am Kai Wright. You can keep in touch with me on Twitter @kai_wright. Of course, you can find me on the live show. Next Sunday at 6:00 PM Eastern, you can stream it at wnyc.org, or tell your smart speaker to play WNYC. Until then, take care of yourselves. Thanks for listening.
New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.