Now that Supreme Court Justice David H. Souter has decided to retire speculation is rife over who President Obama will choose to nominate to the high Court. Conventional wisdom has it that the next appointment will likely be Hispanic given the historic absence from the Supreme Court of Latino representation. It is hard to argue against the logic of appointing a Hispanic American, particularly as the population of Hispanics in the United States continues to swell. Still, we would like to counter the popular sentiment around the President’s likely choice, at least for the moment, and boldly suggest that he consider a Black American to replace Souter.
Supreme Court appointment “politics” has always been dicey. A seat on the Court, a lifetime appointment, has always carried with it the risk, for any President, that the individual appointed might act in a manner the total opposite than expected once on the bench. There is probably no better example of that than former Chief Justice Earl Warren; a California conservative appointed by President Dwight D. Eisenhower, who presided over the Court’s historic decision in Brown v. Board of Education. In other words, the appointment is no guarantee to the President that the appointed will reflect Mr. Obama’s values once confirmed and serving. Still, the current predicament of a pending appointment is preferable to any President than being left with an impenetrable Court that is determinately oppositional ideologically.
That gets us back to President Obama’s dilemma. In the history of our nation, only two Blacks have served on the Supreme Court – Thurgood Marshall and Clarence Thomas. These two men represent polar opposites and their tenure on the Court reflected periods when their individual orientations held sway politically. Since Marshall’s appointment by President Lyndon Johnson, there has been an unwritten but clearly practiced quota on the high Court. Judging by news reports, the “one Black only” rule is clearly in play as there has been little mention of the possibility of a Black appointee. This, despite the fact, that a strong case can be made for the appointment of a Black woman. It seems that diversity is quickly dismissed when white majorities, such as those on the Supreme Court, are called into question.
We appreciate the President’s predicament. As the first Black to be in this position, he faces incredible, and patently unfair, scrutiny over his first pick to the Supreme Court. There are people who are waiting for the opportunity to scream, “I told you so,” in the event that Mr. Obama nominates an African American to the Court. Many people will, on the one hand, cry foul if Mr. Obama’s choice is Black, while on the other, conveniently dismiss the fact that previous white Presidents felt no such need to avoid making multiple appointments of whites. Yet, these same critics will likely be the first to claim that we now live in a post-racial America where race is no longer the differentiator for opportunity, as is evidenced in President Obama. If that is the case, should not the President be able to appoint anyone without fear that his appointment will be cast in racial terms if his choice is Black? In a truly post-racial America the idea of a Black President, nominating a Black to the Supreme Court should not raise an eyebrow.
This is an important appointment as it comes when the Court is considering the relevancy of the Voting Rights Act and its ideological balance is teetering toward the right. This conceivably could be the first of two appointments Mr. Obama might have during his first term. Having endured the embarrassing spectacle of Justice Clarence Thomas’ appointment, it would be a nod toward real justice if homage were paid to Justice Marshall’s legacy by the appointment of a sterling, progressive Black jurist to the Supreme Court. The President need not adhere to antiquated notions of quotas with this pick. We encourage him to act boldly and without any trepidation when naming the replacement for Justice Souter. Yes, there is a Black American on the Supreme Court but there should be room for one more.