Obama Should Nominate a Woman of Color to Replace Scalia on the Supreme Court

For the past forty-five years, the conservative majority on the U.S. Supreme Court has worked diligently to hold back the full force and impact of the demographic changes becoming manifest in America’s modern, multi-racial society. President Obama now has a golden opportunity to remove one of the last major obstacles to the realization of the promise of the movement for justice and equality in America. He should act with dispatch and unapologetically nominate a proud progressive woman who comes from and is committed to the complete inclusion and empowerment of the country’s growing communities of color and whose very presence will help correct the centuries-old gender and racial imbalance on the court.

In the 1950s, many people struggled, sacrificed and died to remove the “whites only” signs from the critical institutions of American society. As a result, millions of African Americans can now vote and enter the employment arena without facing legalized discrimination and millions more people of color were finally able to enter the country and become part of the American family. As a result of these changes — the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Immigration and Nationality Act of 1965 — the numbers of people of color in America’s workforce, voting booths, neighborhoods and communities has increased dramatically. People of color were 12% of the U.S. population in 1968, and they are now 38% and growing every day. Concurrent with this population expansion and the expression of the desire to be included in the fabric of America have been parallel and synergistic demands for equality from women, the LGBTQ community, workers battling discrimination and many other marginalized groups of people.

Just as in physics every action produces an equal and opposite reaction, so too in politics and social change have these revolutionary demographic changes been met with a ferocious and tenacious counter-revolution. At every step of the way, the forces hostile to the browning of America have turned to the Supreme Court and, over the past five decades, they have found a willing co-conspirator more than happy to help block and roll back progress towards equality and justice. Over the past decade, the Court has undermined the Voting Rights Act in its Shelby decision, weakened affirmative action programs in its Schuette decision, and turned loose the power of big money in its Citizens United decision. Law professor Lee Epstein has identified 85 cases where Scalia was part of a 5–4 majority and liberal justices Ginsberg and Breyer were in the minority.

The stakes of the current appointment are especially high given what’s presently on the docket. Cases that could affirm President Obama’s executive order protecting millions of immigrants, undercut the ability of unions to collect fees from the beneficiaries of their collective bargaining efforts, and dilute the voting power of people of color are all on the docket. And in the years ahead, the stakes are equally high. A recent New York Times analysis concluded a progressive appointee would mean that, “Abortion rights would become more secure, and gun rights less so. Business interests would meet with less success, and consumers and workers with more. Judicial hostility to government programs aimed at helping disadvantaged minorities would wane. First Amendment arguments in cases on campaign finance, public unions and commercial speech would meet a more skeptical reception.”

Given the enormous stakes for the direction of the country, not only should President Obama proceed to nominate a replacement for Scalia, he should absolutely choose a woman who comes from and deeply understands the country’s communities of color. First of all, after centuries of racial and gender exclusion, America has a lot of catching up to do. Since the creation of the court in 1789, America has had 112 justices, and 106 have been white men. If Obama and subsequent presidents appointed only women and people of color for the next 100 years, we would still be far behind in terms of balancing the historical scales. And, while we’re at it, let’s stop pretending that there’s an objective, agreed-upon, short list of people who are the most qualified for the job. How do you even make such a determination? There are literally dozens of talented women and people of color who are more than qualified to serve on the Court. Descriptions of some of the talented candidates can be found here and here.

Among the extraordinary candidates for the position are Ketanji Brown Jackson, an African American woman serving on the U.S. District Court for the District of Columbia, Jacqueline Nguyen, a Vietnamese American currently sitting on the Court of Appeals for the Ninth Circuit, and Maria Echaveste, another wise Latina in the mold of Sonia Sotomayor, who served as Deputy Chief of Staff to Bill Clinton. And if you really believe in poetic justice, the perfect pick would be Anita Hill.

The ferocity of the opposition on the right wing to even considering a replacement for Scalia stems from the very real understanding that this pick represents a breaking of the dam holding back the demographic and social change that has been surging into society over the past 50 years. This is a defining moment, and Obama should honor the struggle of those who have gone before and leave a legacy for those who will come after by going big and appointing a strong, unapologetic, progressive woman of color as the next justice of the Supreme Court.

Steve Phillips is a civil rights attorney, Senior Fellow at The Center for American Progress, and author of the national bestselling book “Brown is the New White.”