Biden’s Pledge To Nominate A Black Woman Justice Is A Big Test Of The Left’s Organizing Power Around The Courts

Groups that fought Trump’s nominees are hoping to build on that momentum to support what’s expected to be a historic Supreme Court pick by Biden.

Saul Loeb / AFP via Getty Images

US Supreme Court Justice Stephen Breyer announces his retirement alongside US President Joe Biden on Jan. 27, 2022.

WASHINGTON — Long before the news this week that Justice Stephen Breyer would step down, President Joe Biden’s campaign pledge to nominate the first Black woman for the US Supreme Court provided a focal point for liberal groups hoping to keep up the Trump-era momentum they built around the future of the courts.

Then-candidate Biden’s Supreme Court commitment in early 2020 gave his base plenty of lead time to build a strategy around the next potential vacancy. The imminent confirmation push for whoever Biden chooses to replace Breyer will test how effectively, and successfully, groups can energize their base around the confirmation fight and keep them engaged in a critical election year.

At a White House event on Thursday honoring Breyer, Biden said he hadn’t made a decision yet about a nominee and would announce his pick by the end of February.

“I will select the nominee worthy of Justice Breyer’s legacy, excellence, and decency. While I’ve been studying candidates’ backgrounds and writings, I’ve made no decision except one: the person I will nominate will be someone with extraordinary qualifications, character, experience, and integrity and that person will be the first Black woman ever nominated to the United States Supreme Court,” Biden said. “It’s long overdue.”

Biden first made the promise that he’d choose a Black woman for the high court at a February 2020 debate in South Carolina. Liberal groups that had spent four years opposing former president Donald Trump’s nominees for the federal courts — frequently highlighting the lack of racial, gender, and professional diversity — cheered the move. They began boosting shortlists of potential candidates. They pitched the potentially history-making nomination as a reason for Democrats to turn out to the polls in November 2020 and later, more controversially, for Breyer to step aside once Biden took office.

In the summer of 2020, a group of Black women lawyers and activists launched She Will Rise, an advocacy project with a laser focus on building public support for a Black woman as the next Supreme Court nominee. Biden’s early commitment to choosing from that pool of candidates meant She Will Rise could focus on a grassroots campaign from the start, said Brandi Colander, one of the founding members.

“This really is a moment that we are grateful for because we believe the work that we’ve done to date has helped people understand the gap and the opportunity and the qualified women that are ready to fill a seat,” Colander said.

Progressive groups with a broader focus on issues that matter to women of color also took note of Biden’s pledge because, said Aimee Allison, president and founder of She The People, it was clear that it mattered to the women they spoke to during listening sessions in swing states including Georgia, Texas, and Michigan in the lead-up to the 2020 election.

“Biden's promise didn't come from nowhere. It came as a response of public outcry. I heard it in the listening sessions. I have publicly repeated that demand on behalf of our network, both during the general and then after Biden and Harris took office,” Allison said.

It was clear to Allison even then that organizing around nominating a Black woman to the Supreme Court was important, but now in the lead-up to the midterms and the 2024 election, she sees it as a real potential turning point for Democrats — ”having a Black woman is, or can be, a defining moment for the Biden presidency,” she said.

“We've seen some policy and political losses recently,” she said, citing Biden’s failed voting rights reform bills, delays on criminal justice reform, and the federal minimum wage not having been raised.

The significance of this issue for Allison, as the head of an organization that works to get women of color to the polls, is also that Biden nominating a Black woman to the court would give groups like hers a win to work with in a midterms year when voters are less likely to turn out, and with the Democrats’ House majority hanging in the balance.

“It's going to be an uphill battle to get the turnout that Democrats need to hold the majority. And so we need a win. We need to win. This would be a win,” she said.

Pool New / Reuters

Judge Ketanji Brown Jackson testifies before a Senate Judiciary Committee hearing on pending judicial nominations on April 28, 2021.

The conventional wisdom is that there are three frontrunners for Breyer’s seat: Judge Ketanji Brown Jackson of the US Court of Appeals for the DC Circuit, California Supreme Court Justice Leondra Kruger, and US District Judge J. Michelle Childs, who serves in South Carolina and was nominated earlier this year by Biden for an open seat on the powerful DC Circuit, historically a springboard to the Supreme Court.

Biden’s commitment to a historic Supreme Court nomination before being elected echoed former president Donald Trump’s unusual decision during the 2016 campaign to release lists of names he promised to choose from for the court. Biden didn’t go as far as Trump in tying himself to particular judges, but it was a specific enough pledge that liberal groups could build messaging around it.

Liberal lawyers and activists have long lamented that the left hasn’t been as successful as conservatives in making judicial nominations a priority for Democratic politicians and for the base as a voting issue; appointments to the federal bench are for life. Trump and Republicans’ focus on nominations and the extent to which the fate of his administration’s policies rested in the hands of judges spurred a surge of interest and political organizing among liberals around the future makeup of the courts.

She Will Rise started as a joint initiative with Demand Justice, an advocacy group focused on judicial nominations and other issues related to the courts that originally launched as an opposition force to Trump. Colander said that She Will Rise’s founders were frustrated that the conversation about nominating a Black woman to the Supreme Court wasn’t getting more attention and believed that a targeted messaging campaign “met a need for more education and empowerment.” She said they saw an opportunity to bring in a new demographic to the work that Demand Justice was already doing.

The cohort leading the project also includes April Reign, who created the #OscarsSoWhite campaign; Kim Tignor; and Sabriya Williams. She Will Rise’s campaigns, which use the group’s name as a hashtag across social media platforms, were designed to be “fun,” “colorful,” and “a little cheeky” to attract attention, Colander said. They created an online tracker highlighting Black women already serving on the federal courts. They organized a photo shoot of Black girls dressed in judge’s robes posed like the class picture that the Supreme Court justices sit for — “literally creating the visual of what has yet to be realized,” Colander said.

“It is just going to have to be more approachable,” Colander said. “It has to be something that pulls in someone new.”

Colander said that beyond raising awareness about why diverse backgrounds and experiences strengthen the federal bench, She Will Rise has tried to highlight the link between the court’s work and issues that affect Black women, such as voting rights, reproductive rights, maternal health, environmental protection, and affirmative action — an especially relevant issue now that the Supreme Court has agreed to hear a pair of cases regarding the subject in the next term.

She Will Rise became independent of Demand Justice in early 2021. Colander said that once Biden announces his choice to replace Breyer, the group will devote resources to supporting that nomination; they won’t be pushing for any particular candidate in the meantime. Advocacy groups have poured millions of dollars into public campaigns to support and oppose Supreme Court nominees. Colander declined to discuss how much money She Will Rise is prepared to spend — “we will be very engaged” was the most she’d say on the subject.

Demand Justice also declined to provide specifics on the financial resources it was prepared to lay out for this confirmation push. Cofounder and executive director Brian Fallon said in an email, “We expect the Senate will act to confirm Biden's pick quickly, but we will do and spend what is needed to ensure that ends up the case.”

Other progressive groups recognize this is a moment for those on the left to make a cohesive push for multiple issues (reproductive rights, voting rights, and climate change, to name a few), connecting their agendas to the court in a way that groups on the right have been doing for a long time. Some of those groups have already been putting resources into the push to expand the Supreme Court, lobbying lawmakers and organizing members to write op-eds and make calls to pass the Judiciary Act, which has been introduced in the House and Senate.

“For decades, conservatives cared about the Supreme Court and really focused their politics and candidates and races on it. I think more recently, we are seeing that progressives understand the importance of the court, the voting on the court and understand that a lot of our rights come down to the decisions made on the court,” said Brett Edkins, policy director for Stand Up America, a group founded in 2016 that has organized online in the past year to get members to make 2,500 calls and send 55,000 emails to elected officials in support of expanding the Supreme Court. Edkins said that the same infrastructure stands at the ready to push lawmakers to confirm the right candidate.

Legacy progressive groups like People For the American Way found that the Trump years gave them a renewed focus on the courts and raised public interest in their mission to get “fair-minded” judges appointed at every level. Now, they’re using Breyer’s retirement plans and Biden’s promise as another rallying point to maintain that momentum.

On Wednesday, the group released a video using archival civil rights footage as well as a video of modern-day progressive Black women in leadership — Stacey Abrams, Rep. Ayanna Pressley — overlaid with the words “It’s Time For a New Perspective on the Supreme Court. It’s Time To Put A Black Woman on the Supreme Court.”

Marge Baker, the executive vice president of People For the American Way said that in addition to getting activists out talking about the issue, the group expects to have conversations with the White House and lobby lawmakers on Capitol Hill to push specifically for a progressive Black woman to be nominated and then confirmed.

Sister Song, a longstanding national reproductive rights–focused group based in the South, has organized around Biden’s promise partly because it sees this as an opportunity to broaden the conversation around racial inequities. The group's messaging this year is largely around the 50th anniversary of the Roe v. Wade decision, tying into the importance of appointing a progressive Black woman to the court.

“We need to have someone in this position that understands what intersectionality is, and understands that this fight for Roe is absolutely connected to the fight for economic justice, is absolutely connected to the fight for environmental justice. All of these things are connected,” said Monica Simpson, executive director of Sister Song.

“So that's what we're going to be organizing around. We need for people to see the full lives of the folks that they are making decisions for,” she said.

Correction: People for the American Way Executive Vice President Marge Baker's first name and title were omitted in a previous version of this post.