This Women's History Month, We Witnessed History For Our Courts

Nora Howe

Image of Ketanji Brown Jackson with her right hand raised before the Senate Judiciary Committee Supreme Court confirmation hearing. Text reads: "Persevere. I would tell them to persevere."This week, in the final days of Women's History Month, Judge Ketanji Brown Jackson sat before the Senate Judiciary Committee as members considered her nomination to the Supreme Court. Judge Jackson, a long-term jurist and public servant, would be the first Black woman on the Court. Her nomination is part of an intergenerational struggle to ensure that our government decision-makers, including our judges, are representative of the people they serve and reflect the tapestry of lived experiences in our country.

For most of our nation's history, the legal profession and federal judiciary were exclusively white and male, with women of color being particularly excluded. The first Black woman lawyer in the United States was Charlotte E. Ray, who studied at Howard University and was admitted to the D.C. Bar under a male pen name in 1872 because women were barred from practice at the time. After she was forced to close her practice due to discrimination, she continued her work in public service, spending the rest of her career as an educator and civil rights activist.

The first Black woman federal judge, Constance Baker Motley, was confirmed to the U.S. District for the Southern District of New York almost one hundred years later, in 1966. Motley was an NAACP Legal Defense and Educational Fund lawyer, the first Black woman to argue before the Supreme Court, and the person who filed the original complaint in Brown v. Board of Education. In Judge Jackson's speech accepting her nomination, she cited Motley as an inspiration and role model. Judge Jackson is part of a long legacy of Black women who, despite significant barriers, commit to upholding the constitution and protecting our democracy.

But while trailblazers like Motley led the way, the overall percentage of women of color on the bench — and women overall — remained incredibly low for decades to come. The Supreme Court was exclusively white and male until Justice Thurgood Marshall's confirmation in 1967; did not include a woman Justice until Justice O'Connor was confirmed in 1981; and did not include a woman of color until Justice Sonia Sotomayor's confirmation in 2009. The lower courts haven't been much better: In 1980, only 9% of federal judges were persons of color and only 5% of judges were women. Today, only 20% of judges are people of color and 27% are women, while only 4% of judges are women of color. Slow progress was made during the Clinton, W. Bush, and Obama presidencies, but the most significant strides occurred in the first year of the Biden administration.

Due to decades of organizing and advocacy, President Biden has made good on his promise to appoint “federal judges who look like America.” He has specifically prioritized the nomination of eminently qualified women of color to the bench. Almost half of President Biden's record-breaking nominees have been women of color, with 12 Black women, including Judge Jackson, nominated to the federal bench. While women with disabilities and LGBTQ+ women remain underrepresented (for example, there are no openly bisexual or trans women on the bench), the Biden administration's progress has been unprecedented. Importantly, the diversity of Biden's appointees' lived experience is matched by their range of professional experiences, including service as public defenders (like Judge Jackson), civil rights attorneys, and labor lawyers.

Having a Court that looks like America, including correcting for the underrepresentation of women on the bench, matters. The diversity of our Court contributes to the rich deliberations that the Court undertakes, as each justice has different lived experiences — personal and professional. As Judge Jackson said herself during this week's hearings, her historic nomination as the first ever Black woman bolsters public confidence in the courts: “We have a diverse society in the United States […] When people see that the judicial branch is comprised of a variety of people who have taken the oath to protect the Constitution and who are doing their best to interpret the laws consistent with that oath, it lends confidence that the rulings that the Court is handing down are fair and just.”

Judge Jackson also spoke about the importance of representation for providing more role models for young people: “I have been so touched by the numbers of people who've reached out to me in this period of time to say how much it has meant to their daughters, to their sons, to the next generation that I've been nominated and hopefully confirmed.”

Throughout the Senate Judiciary hearings, Judge Jackson confidently described her public service background and judicial methodology. In the face of unfounded attacks common to women of color nominees, she outlined her demonstrated commitment to ensuring that our legal system works for all Americans, not just the rich and powerful. And as the first Black woman nominated to the Supreme Court, she has discussed the historic nature of this moment, and what her nomination means for our democracy.

As Judge Jackson said during her hearing, “I am here, standing on the shoulders of generations of Americans who never had anything close to this opportunity… so this nomination against that backdrop is significant to a lot of people, and I hope it will bring confidence. It will help inspire people to understand that our courts are like them, that our judges are like them, doing the work, being part of our government.” Let's make sure that Judge Jackson is confirmed without delay and help leave open the door for the next generation of women, and people, who will make our country more perfect.

Cross-posted from Alliance for Justice. Nora Howe is a Dorot Fellow at Alliance for Justice.

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