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Black female lawmakers warn against pitting Supreme Court candidates against each other

At the forefront of their minds: Making sure the eventual nominee is not tainted by Democratic infighting ahead of expected GOP attacks on her qualifications and judicial philosophy

Rep. Cori Bush (D-Mo.) departs after a vote on Capitol Hill on Feb. 9. (Jabin Botsford/The Washington Post)

Black female lawmakers are elated that President Biden will soon nominate the first Black woman to sit on the Supreme Court.

But there are concerns that the early jockeying over whom he should choose will pit potential nominees against each other at a time when the party should be focused on celebrating a historic moment.

“I just don’t think it’s our place to pit Black women against each other in trying to get this spot. No,” Rep. Cori Bush (D-Mo.) told reporters Tuesday when asked if the Congressional Black Caucus is uniting around any potential nominees. “Let’s push all of them up there. And whoever has all the things that’s needed to get this job done, the qualifications, the experience, the will — they got to have the will to do this because it’s going to be tough — let’s let that person rise.”

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The issue has arisen, in part, because of aggressive public lobbying by House Majority Whip James E. Clyburn (D-S.C.), the highest-ranking Black member of Congress, who is calling on Biden to nominate his preferred pick — U.S. District Judge J. Michelle Childs of South Carolina. That, in turn, has led labor groups to push against her candidacy, pointing to her time working on behalf of employers against worker claims while in private practice.

Among the other potential nominees mentioned most often are Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the D.C. Circuit and Leondra Kruger, a California Supreme Court justice, both of whom have their own advocates looking to boost their chances.

Several Black female lawmakers interviewed for this article did not criticize Clyburn for his advocacy for Childs, noting he has been promoting her for judgeships for years by making the case she is well respected in his home state and that her background, including being educated at state schools, would give the federal judiciary a needed and different perspective.

But they made clear it is not an approach they plan to take.

“We don’t see any reason to chime up, certainly not before [Biden] comes forward with a nominee considering how many are so, not only qualified, but overqualified. So we have not taken a position yet,” said Del. Eleanor Holmes Norton (D-D.C.), who heads the Congressional Black Caucus’s judicial nominations task force.

At the forefront of their minds is a desire to make sure the eventual nominee is in no way tainted or diminished by Democratic infighting ahead of expected Republican attacks on the nominee’s qualifications and judicial philosophy, which many in the GOP are warning will be “radical” and “leftist.”

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Members of the Congressional Black Caucus (CBC) are determined to avoid becoming divided over the nominee before Biden announces his choice. That point was discussed by many members during a Zoom meeting, on the day it was reported that Justice Stephen G. Breyer would step down, in which participants stressed that all the women on the shortlist have the qualities necessary to sit on the court, according to an aide familiar with the discussions who spoke on the condition of anonymity to describe the private conversations.

On Thursday, fourteen women of the CBC sent a letter organized by Bush to Biden commending him for keeping his promise to nominate a Black woman to the court at a time when that perspective is often missed in the federal judiciary.

“The appointment of a Black woman justice with an established record of working to advance racial justice and eradicating entrenched white supremacy is of the utmost importance in reviving the Supreme Court’s credibility,” the women wrote.

Many CBC members are already focusing their attention on blunting Republican attacks from several GOP lawmakers, among them Sen. Ted Cruz (R-Tex.), who recently criticized Biden for saying he would pick a Black woman, arguing that he is elevating that criterion above choosing the most qualified nominee. For many Black female lawmakers, it’s a false and offensive argument — and one they said they are all too familiar with.

“That’s an effort to diminish the value and the brilliance and the competence and the judicial temperament,” said Rep. Barbara Lee (D-Calif.) “It’s a way to try to diminish us as human beings and as Black people.”

Rep. Brenda Lawrence (D-Mich.) said the moment Sen. Roger Wicker (R-Miss.) said that whoever Biden chooses will be benefiting from affirmative action, it banded Black women in Congress together to immediately remind the public that all the nominees under discussion were deemed qualified by the American Bar Association, while 10 of President Donald Trump’s judicial appointees were not.

“This is something I will not allow, will not be quiet, to anyone saying, ‘Oh, my God, we just doing this affirmative action thing. We just got to pull some Black person out. They’re not going to be qualified,' ” Lawrence said.

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Conversations have already taken place about touting the nominee’s qualifications as soon as Biden announces his pick and to call for a quick and fair hearing in the Senate.

Activist groups are similarly preparing how to rally around the nominee and stress the importance of her perspective for the court. Kim Tignor, co-founder of Sista SCOTUS, said that while Biden’s pick won’t change the ideological makeup of the court, the conversations she will have with fellow justices can help steer the direction of a case or add personal testimony to opinions, as Justice Thurgood Marshall did.

“You can imagine having a Black woman, someone who has a diversity of lived experiences, will bring with her not just her own personal and professional diversity, she brings the lived experiences of the communities that have wrapped around her throughout her entire career and life,” Tignor said. “We are ready to wrap around any of the women whose names are in the mix right now.”

The need to be proactive in defending a fellow Black woman from attacks is personal for the lawmakers interviewed for this article, many of whom have faced repeated discrimination, abuse or condescension themselves.

For some that experience was brought home this week when Rep. Joyce Beatty (D-Ohio), the chair of Congressional Black Caucus, asked Rep. Harold Rogers (R-Ky.) to put on a mask before boarding the Capitol’s subway system. Beatty said Rogers then poked her in the back and told her to get on the train.

“When I asked him not to touch me, he responded, ‘kiss my a--,’ ” she tweeted Tuesday. Rogers later apologized, but the incident struck some as emblematic of how frequently accomplished Black women are still disrespected by White colleagues or peers.

“This speaks volumes as to why we have to have a woman not only on the Supreme Court, but in every aspect of the public and private sector. I mean, you know, this constant effort to dehumanize Black women is something that Black women know constantly,” Lee said. “We always, constantly are on the defense and offense and we keep going. It’s their problem, but we’re not going to let them get away with any of this.”

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Beyond countering attacks, several lawmakers said they also want to do all they can to ensure the nominee serves as an inspiration and is recognized as the historical figure she will be — the first Black woman to serve on the Supreme Court since it first assembled on Feb. 1, 1790.

Many said they know firsthand the effect a Black woman serving in a position of prominence can have on society and particularly on children of color, who scan their world assessing what they can achieve by who they see performing those roles now.

Lawrence said she realized what it meant to be the first Black woman to lead the city of Southfield, Mich., through the eyes of a very confused 6-year-old Black girl. Lawrence recalled standing before the girl on career day, watching her mind race trying to square how someone like her could grow up to be mayor.

“She looked at me and smiled and said, ‘I could mayor too.’ And I said, ‘Yes, you can,’ ” Lawrence recalled. “And people don’t get, when you see something that has never been represented by you, in so many people’s minds it’s 'not a place I belong,’ ‘it’s not something I can aspire to.’ ‘I need to look somewhere else.’ It’s time for the Supreme Court and I’m confident that Biden’s going to keep his promise.”

As a candidate for Congress in Delaware, Lisa Blunt Rochester (D) said she did not recognize the importance of someone like her becoming the first Black woman to hold the state’s at-large House seat until a year into the job. The thought rarely flashed across her mind during the 2016 campaign, when she was focused on winning. But she grew misty-eyed recalling how a child came up to her this past weekend to tell her that her teacher asked the class to do a Black History Month report on her.

“I talk a lot about the fact that, to me, this is a step beyond representation, but a step towards normalization, that we should be thinking of Black women in every facet of our life,” Blunt Rochester said. “It’s beyond symbolism at that point.”

Eugene Scott contributed to this report.