A Romney presidency could have disastrous effects on the U.S. Supreme Court. With Ruth Bader Ginsburg 79 years old, and a two-time cancer survivor, it is conceivable and probably likely that she will retire from the Supreme Court within the next four years. As president, Mitt Romney would no doubt nominate as her replacement a conservative in the mold of Clarence Thomas, Antonin Scalia, and Samuel Alito. An additional vote in the Supreme Court’s conservative bloc would roll back the clock on the many strides made in women’s rights, voting rights, and affirmative action. The potential for such a significant change in the makeup of the Court should have all liberals and progressives deeply concerned.
However, there is another reason for black women in particular to be very uneasy about a Romney presidency and the effect it will have on the High Court. In recent years, Supreme Court justices have been selected from the pool of current federal court of appeals judges. If Romney follows in the footsteps of some of his republican predecessors and names no black women to the federal appellate court, the chance of having a viable black female Supreme Court justice nominee in the coming years dwindles to almost zero.
When selecting Supreme Court justice nominees, presidents have increasingly looked to the federal courts of appeals for possible candidates. Indeed, eight of the nine current justices were sitting federal appellate judges when nominated. Notwithstanding the current make up of the Supreme Court, the nomination of federal appellate judges to serve on the High Court is a relatively new trend. For example, from 1914-1967, only twelve of the thirty-two, or 38 percent, of the new nominees were former or current federal appellate judges. Franklin D. Roosevelt nominated eight justices from 1937 to 1943, and only one was a federal judge. John F. Kennedy made his two Supreme Court appointments in 1962 and neither had prior judicial experience.
However, beginning in 1967, when Lyndon B. Johnson nominated Thurgood Marshall (the then-current Solicitor General, but former Second Circuit Court of Appeals judge), sixteen of the twenty-three, or 70 percent, of the individuals nominated to the High Court were federal court of appeals judges. Moreover, since Ronald Reagan nominated Antonin Scalia in 1986 (who was a judge on the D.C. Circuit Court of Appeals), nine of the eleven individuals nominated to the Supreme Court have been federal appellate judges. The two non-judge nominees were Harriet Miers and Elena Kagan, and only Kagan was confirmed.
The trend of selecting federal appellate judges to serve on the Supreme Court has had the effect of greatly reducing the already small number of black women on the short list of potential Supreme Court justice nominees because very few black women have been appointed to the federal appellate bench. Although the first white woman, Florence Ellinwood Allen, was appointed to a federal appellate court in 1934, and the first black man, William Hastie, was appointed to a federal appellate court in 1950, the first black women was not appointed to the federal appellate bench until 1979. President Carter made the historic appointment when he nominated Amalya Kearse to the United States Court of Appeals for the Second Circuit. Since Carter’s appointment of Kearse more than thirty years ago, only seven additional black women have been appointed to the federal appellate bench. Presidents Reagan and Bush I appointed 83 and 42 federal appellate judges respectively; however, neither appointed a single black woman to the federal appellate bench during the twelve-year span of their presidencies. President Clinton appointed three black women to the federal appellate bench out of 66 appointments, and President Bush II appointed two out of 62 appointments. President Obama has appointed two black women to the federal appellate bench out of 30 appointments.
Amazingly, all of the black women appointed to the federal courts of appeals are still serving today, although some have assumed senior status. However, despite their judicial experience, none of the eight would be viable Supreme Court nominees because of their age. Presidents have long sought to nominate individuals to the Supreme Court who could serve on the Court long after the president left office. Thus, most presidents seek to nominate individuals no older than 60 years old. And the last five confirmed nominees were 56 years old or younger. Of the eight current African America female federal appellate judges, the youngest is Ojetta Rogeriee Thompson of the First Circuit, who is 61 years old.
If the trend of looking to sitting federal appeals court judges for Supreme Court nominees continues, more black women need to be appointed to the federal courts of appeals to ensure that a black woman can at least be considered for elevation to the High Court. President Obama has demonstrated his commitment to diversity on the federal bench with the appointments of many women and people of color. Romney, on the other hand, has a less than stellar track record on diversity as governor of Massachusetts. Moreover, Romney, like Reagan and Bush I, would have little political incentive or pressure to appoint any black women to the federal courts. And as the number of black female federal court of appeals judges dwindles, so will the hope of having a black female Supreme Court justice anytime in the near future.