As a Black woman and a former Republican, I am angry that President Trump and Senate Majority Leader Mitchel McConnell (R-Ky.) have announced their intention to quickly fill the vacancy she has left. Joe Biden, the Democratic nominee for president, has pledged to appoint a Black woman to the Supreme Court, if he is elected. By rushing to replace Ginsburg before the November election, the White House and Senate Republicans are stealing this seat from Black women, who have never had one of our own appointed to the highest court in the land.
You might think someone who leans conservative would be cheering as Republicans closes in on a long-sought goal of ensuring a solid conservative majority on the court. But last year I publicly broke with the party that I had been a member of for most of my adult life. I am, like many, a “never Trumper” who did not support Trump in 2016 and could never support him now. As a college professor and great admirer of our Constitution, it is hard to see the once-great party of Lincoln morph into the party of Trump. The party that fought for the freedom and liberty of African Americans now calls us “thugs,” “animals,” and “anarchists” simply because we dare to stand up for ourselves, march for our God-given rights and protest peacefully to galvanize support for our very American cause.
The Republican Party no longer has space for moderates like me and even conservatives like the late U.S. senator John McCain of Arizona, former Ohio governor John Kasich, and my former boss, former New Jersey governor Christine Todd Whitman. Kasich and Whitman, along with many others, including McCain’s widow, Cindy, have endorsed Biden because they are appalled at Trump’s blatant disregard for constitutional norms, and lack of decency and respect for American servicemen and citizens alike. And consider what he has done to our country in the past year: over 200,000 dead Americans from the coronavirus, the open race-baiting appeals to White suburban women, attacking the 1619 Project curriculum as “child abuse,” defending Confederate generals and monuments.
My frustration with what’s about to happen over the next month with Ginsburg’s seat is on two fronts: First, Trump will almost certainly nominate a woman, but she will likely be White. The one Hispanic female judge on his list, Barbara Lagoa, who sits on the U.S. Court of Appeals for the 11th Circuit, is thought to be too new to the federal bench to be moved up to the Supreme Court. The most likely nominee is Judge Amy Coney Barrett, who, if nominated and confirmed, will likely be to the far right on issues of great social import to women. She is a staunch conservative, and she will be the antithesis of the champion for equality under the law for women, African Americans and other people from underserved communities, the opposite of Ginsburg.
If we didn’t understand it before, we do now; elections really do have consequences. Black women are the most reliable voting bloc for the Democratic Party. Yet, until Sen. Kamala D. Harris’s historic choice as Biden’s vice-presidential nominee, Black women also were the most overlooked and taken for granted.
I wondered for a moment if Trump, cravenly looking to make history for his own gain, would consider a Black female jurist. The problem is, there are very few Black female Republicans, or conservative judges. One name often mentioned years ago was Janice Rogers Brown, who was appointed by President George W. Bush to the U.S. Court of Appeals for the D.C. Circuit. Now retired, she is no longer an option.
Biden, should he win in November, will now have his rightful choice taken away from him by Trump, McConnell and Lindsey O. Graham, who chairs the Senate Judiciary Committee. Biden first raised the issue of putting a Black woman on the court during the primary at a February debate. “I’m looking forward to making sure there’s a Black woman on the Supreme Court to make sure we in fact get everyone represented,” he said. At a June news conference, Biden doubled down on that commitment: “We are putting together a list of African American women who are qualified and have the experience to be on the court. I am not going to release that until we go further down the line in vetting them as well.”
That will not happen now. Senate Republicans have the votes to move forward with Trump’s nominee, thanks to Sen. Mitt Romney (R-Utah) announcing this week that he supports holding a vote on the nomination. This is pretty much a done deal, either before the election, or after in a lame-duck session, regardless of who wins. Black women will yet again be relegated to the back of the line, after 200-plus years of being shut out of the Supreme Court, where Black men, White women and a Latina have served or are now serving. Sound familiar? It’s reminiscent of the 15th Amendment that gave “Black men” the right to vote, and the 19th Amendment that gave women the right to vote but did not guarantee the right for Black women living under Jim Crow segregation. We are always getting left behind, and historic selection aside, we are more than worthy of the opportunity that seems to keep being denied us.
Black women bring a whole different perspective to any room, or any court, we enter. As women, and more pointedly as women of color, we have to deal with double discrimination, often have access to fewer opportunities and must work harder to prove ourselves. Our ability to “rise” through challenges, hardship and tragedy, as Maya Angelou so beautifully phrased it, give us unique insights, empathy and skill sets to deeply connect with the premise of “equal justice” under law.
Perhaps my biggest sadness about what is unfolding right now is that our first Black president, Barack Obama, should have nominated a Black woman to the Supreme Court. Instead, he nominated the first Latina. And when given a second opportunity to put one of us on the court, he chose a White female and fellow Harvard Law graduate who worked for him. Back then, no one was allowed to criticize or call out the first Black president. But Black women were key to Obama being elected president — twice. They turned out at higher rates than any other demographic group, according to census data, and exit polls show that more than 95 percent of them voted for him. And yet, here we are, years later, about to have our turn taken away from us, again.
As much of a fan as I am of Obama — so much so that this once-lifelong Republican voted for him twice — I will always be disappointed that he did not make history by nominating a Black woman to the Supreme Court.
Correction: Due to an editing error, an earlier version of this story incorrectly identified Nelson as a Republican. She is no longer a member of the party. This version has been updated.