A Black Woman on the Highest Court in the Land

For the first time in almost 246 years since the Declaration of Independence, a Black woman will soon sit on the Supreme Court of the United States. This is much longer than it should have taken, but this is a moment to celebrate. Yet, as is too often the case when people of color advance in this country, attacks against the likely frontrunner have turned a moment of celebration before the confirmation battle into another episode of racist division.

Judge Ketanji Brown Jackson, a jurist and member of Harvard’s Board of Overseers, is considered by many to be Biden’s most likely pick. An honors graduate of Harvard College and Harvard Law School, where she was an editor of the Law Review, Judge Brown Jackson clerked for Justice Stephen Breyer on the Supreme Court and now serves on the most prestigious circuit in the country. She is among the most qualified people ever to be considered as a nominee to the Supreme Court.

You wouldn’t know it, though, from how her nomination has sometimes been discussed. Some comments strongly suggested that the Court will have a less qualified candidate because of Biden’s choice to fill the vacancy with a Black woman. We find it troubling that there is often an explicit reference to Judge Brown Jackson as a Black woman but often none to her professional qualifications. These attacks are racist and intellectually unserious, failing to account for the systemic racism that has kept Black women from the highest courts of this country for so long. Despite apologies from some of her critics, the fact that such language comes naturally to prominent lawyers speaks to the racial bias that permeates the legal establishment.

We must not lose sight of these ugly attacks as we consider the matter of Judge Brown Jackson’s potential recusal from the upcoming Supreme Court case challenging Harvard’s affirmative action policies if she were to be confirmed. The informal rules governing recusal from cases brought before the Court have long suffered from ambiguity, leaving individual Justices to make judgment calls on whether they can adjudicate impartially. We would point out, without making a judgment, that the district court’s findings on Harvard’s admissions policies did not once mention the Board of Overseers nor has Judge Brown Jackson herself yet addressed the issue, making any talk of recusal premature, to say the least.

Against the backdrop of this impossible challenge, it is clear to us that ambiguous rules will always be applied most severely when it is a Black woman on the other end. The specter of recusal has repeatedly been used to cast unjust aspersions on the judicial work of minorities and women. District Judge Gonzalo P. Curiel, for one, faced sordid accusations of unfairness from former President Trump for the grave offense of adjudicating a civil suit against Trump University while Mexican.

These malignant smear campaigns cannot continue, either in the upcoming affirmative action case or beyond. Only clearer, more explicit, more evenly applicable rules can ensure that recusal does not lie about like a loaded weapon, ready to be brandished at any judge who is not white or not male.

Critically, as the racist, sexist backlash against Judge Brown Jackson has underscored, we cannot forget that Black women are relentlessly held to a higher standard in both triumph and difficulty. When they are not at the center of unjustified controversy, they are often pushed into the spotlight against their will, sometimes in the form of being a campaign promise intended to solicit Black votes.

We know Black people and specifically Black women are so much more than that, and we must see and treat them with the dignity and respect that this country has owed them for so long. There is no shortage of highly qualified, talented Black women who would honor a seat on the Supreme Court, and we look forward to the day that we can officially celebrate one of them breaking this ugly 246 year streak.

To whoever has to go through the vituperative confirmation process to make that happen, we wish her the peace and strength this country has too long sought to deny Black women. And, if she is confirmed, despite the manufactured scandals, impossible standards, or overblown criticisms, there will be many more cheers: we cannot wait for the historic moment that she assumes her rightful place, long-denied, on the highest court in the land.

This staff editorial solely represents the majority view of The Crimson Editorial Board. It is the product of discussions at regular Editorial Board meetings. In order to ensure the impartiality of our journalism, Crimson editors who choose to opine and vote at these meetings are not involved in the reporting of articles on similar topics.

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