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In Supreme Court nomination debate, echoes of past judicial breakthrough

AILSA CHANG, HOST:

President Biden's nominee to fill the Supreme Court seat soon to be vacated by retiring Justice Stephen Breyer hasn't even been named yet, but she's already facing criticism for being chosen for the wrong reasons. Biden promised to pick a Black woman, and almost immediately, critics on the right suggested that could mean passing over the best-qualified candidate. Here's Republican Senator Ted Cruz of Texas.

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TED CRUZ: You know, Black women are - what? - 6% of the U.S. population. He's saying to 94% of Americans, I don't give a damn about you. You are ineligible.

CHANG: This 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, Constance Baker Motley, the first Black woman to serve on the federal bench.

TOMIKO 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.

CHANG: That's Tomiko Brown-Nagin of Harvard University. Her biography of Motley is called "Civil Rights Queen."

Motley's credentials for the court were sterling. She had been a high-profile civil rights lawyer. She wrote the original complaint in Brown v. Board of Education. She'd served in the New York state Senate. And all of that mattered to President Lyndon B. Johnson when he nominated might lead to the U.S. District Court for the Southern District of New York in 1966. But what also mattered to Johnson was Motley's identity.

BROWN-NAGIN: Johnson wanted to prove that he was a strong supporter of the civil rights movement.

CHANG: Johnson was facing pressure from civil rights groups to appoint people of color and women to prominent government posts. And while Motley's nomination drew wide praise, Brown-Nagin says some Democrats worried that Motley's identity as a Black woman and prominent civil rights lawyer made her too risky a choice.

BROWN-NAGIN: 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.

CHANG: The American Bar Association - right.

BROWN-NAGIN: Yes, the Bar Association - claiming that she lacked trial experience in New York, which was remarkable because she had litigated all over the country...

CHANG: Including being the first Black woman to argue in front of the Supreme Court.

BROWN-NAGIN: That's correct. Constance Baker Motley argued and won 9 of 10 cases that she argued before the Supreme Court. And those cases were landmark cases across a number of areas, from civil protest to school desegregation to the right to counsel.

CHANG: Well, after a seven-month delay, Constance Baker Motley is finally confirmed to be a federal judge. And 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?

BROWN-NAGIN: 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 equal opportunity existed in America. Of course, this is a principle for which she had fought for so many years.

CHANG: 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?

BROWN-NAGIN: 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.

CHANG: In other words, your identity is not inherently judicial bias.

BROWN-NAGIN: Exactly.

CHANG: 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?

BROWN-NAGIN: 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, 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.

CHANG: 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?

BROWN-NAGIN: There are women on that shortlist whom I know. They're in my professional and social networks, and I care about them. And I could 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, Ailsa, this move by Biden mostly reflects ordinary politics.

CHANG: Tomiko Brown-Nagin's new book is called "Civil Rights Queen: Constance Baker Motley And The Struggle for Equality." Thank you very much for sharing this time with us.

BROWN-NAGIN: Thank you for having me. Transcript provided by NPR, Copyright NPR.