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Obama Should Appoint First Black Woman for Supreme Court, Jurists Say

Hazel Trice Edney | 4/28/2010, 2:57 p.m.
Georgia Supreme Court Chief Justice Leah Ward Sears is reportedly among President Barack Obama's potential nominees under serious consideration to replace retiring Supreme Court Justice John Paul Stevens. Courtesy Photo

President Barack Obama needs only to turn over in his bed to be reminded of all the Black women who are powerfully qualified to be U. S. Supreme Court justices. If First Lady Michelle Obama was not his wife, some legal scholars say she would be a clear and obvious candidate for the short list to replace retiring Justice John Paul Stevens.

Yet, when Stevens announced his retirement April 9, not one Black woman immediately surfaced as a so-called "short-list" candidate despite the fact that no Black woman has ever served on the high court. This week, the name of fomer Georgia Supreme Court Chief Justice Leah Ward Sears began circulating as one that the President is seriously considering. The National Bar Association has put forth the name of Justice Ann Claire Williams, the first African-American ever appointed to the Seventh Circuit and the third African-American woman ever to serve on any United States Court of Appeals.

There are at least dozens of Black women across the U. S. who are equally qualified.

"The NBA strongly urges President Obama to use this upcoming vacancy as an opportunity to further diversify the high court and to make it more reflective of the nation it serves," the NBA said in a statement announcing its recommendation of Williams. The organization sent a letter to the President making their choice clear.

According to widespread reports, President Obama has actually widened his search to include as many as 10 jurists from across the nation.

"I think that President Obama has an enormous task and a wonderful opportunity to find a person with the combination of talents that will help solidify a great choice," says Harvard Law Professor Charles Ogletree in an interview. "The fact of the matter is that you can look at profiles in Ebony Magazine or some of the women in Jet or Essence Magazine or just look at the National Bar Association, which has a contingent of Black women judges and lawyers, to see some of the stars we have who are not well known to a large extent, but clearly have every one of the qualities and qualifications necessary for the job."

Ogletree declined to name some of those in his mind. But, Penn State constitutional scholar Mary Frances Berry, former chair of the U. S. Commission on Civil Rights, quickly ticked off several names of qualified Black women in addition to Sears. They included Elaine Jones, former director-counsel of the NAACP Legal Defense and Education Fund and Jacqueline A. Berrien, chair of the U. S. Equal Employment Opportunity Commission.

Berry also agreed that Children's Defense Fund President Marian Wright Edelman, a Yale Law School graduate and the first black woman admitted to the Mississippi Bar, would make a great candidate. Lani Guinier, Harvard Law School's first African-American tenured professor, is another name that Berry agreed could be considered.

Fourteen years ago, President Clinton nominated; then withdrew from nomination Guinier as assistant attorney general. Amidst that 1993 blaze of controversy over her positions on proportional representation, Guinier stood prepared to fight when Clinton submitted to counsel to withdraw the nomination.

"I think that it would be a good thing if a Black woman could be appointed since there's never been one," said Berry. "Michelle, if she weren't the President's wife, is full of qualifications. And there are many qualified Black women."

Michelle Obama, a graduate of Harvard Law School like her husband, was actually his mentor in the Chicago law firm of Sidley & Austin. Though it might be controversial, President Obama actually could appoint his wife to the court. That precedent was set when President John F. Kennedy, in 1961, appointed his brother, Bobby, to the position of U. S. attorney general.

Asked to consider herself, Berry scoffed at the suggestion that she is also a qualified candidate for the high court. She said that she is "too old." But, then she shot down her own argument by recalling that Justice Ruth Bader Ginsburg was appointed by Clinton at the age of 64.

As Stevens will retire at the end of the court session in late spring, Obama is now in the process of exploring the backgrounds and qualifications of prospective candidates. He will likely announce only one person who will then go under extreme scrutiny by the U. S. Senate Judiciary Committee before an up or down confirmation vote by the entire U. S. Senate.

"We hope and expect President Obama would consider candidates from a variety of backgrounds, as he has indicated," said John Payton, director-counsel of the NAACP Legal Defense and Education Fund. "Certainly, it would be wonderful to have an African-American -- male or female -- appointed to the Supreme Court. And, yes, it would be nice to hear more African--American women mentioned on the short list of candidates."

Regardless of the race or gender, Black jurists agree that there is certain criterion that is clearly necessary at this point to balance out the strong bent of conservatism still on the court - including Black Justice Clarence Thomas.

"There is definitely need for someone who has a progressive sense about the role of the Supreme Court Justice and someone who has a sense that the Constitution has to serve everyone in the country," Ogletree says.

Justice Stevens, 90, considered a moderate centrist, was appointed by President Gerald Ford in 1975. Ogletree describes him as someone "who changed his mind and understood the Constitution better over time and leaves with a legacy of someone defending the broad interests of everyday people."

Berry says workers rights should be a foremost consideration in the candidate's portfolio.

"One of our major problems in the Black community is that the number of contracts that minority business receive from state and local governments have gone down" since the court decided Croson v. City of Richmond among other so-called set-aside cases. College admissions policies are also issues to be considered, she said.
"We want judges who have knowledge and information and positions on these positions who are progressive no matter what color they are."

Lauding Stevens as "a stalwart in the protection of civil rights", Payton says the court needs a replacement who "will continue Justice Stevens' approach to upholding the Constitution in a way that has guaranteed equality for all Americans. LDF urges President Obama to seek the qualities that made Justice Stevens such an outstanding jurist such as a willingness to uphold fundamental principles of fairness and equality and to ensure that even the powerless have access to our justice system."
Ogletree agrees, adding that Black women should not be among the invisible.

"When you think about the success of Black women running universities, running corporations being involved as leaders in religion ... you see that we have talents in every conceivable place. It doesn't take rocket science to know that there are exceptionally qualified people."