For a historic high court pick, Dems must think outside box

Democratic presidential candidate former Vice President Joe Biden, speaks as he is endorsed by House Majority Whip, Rep. Jim Clyburn, D-S.C., background, in North Charleston, S.C., Wednesday, Feb. 26, 2020. (AP Photo/Gerald Herbert)
Democratic presidential candidate former Vice President Joe Biden, speaks as he is endorsed by House Majority Whip, Rep. Jim Clyburn, D-S.C., background, in North Charleston, S.C., Wednesday, Feb. 26, 2020. (AP Photo/Gerald Herbert) (Copyright 2020 The Associated Press. All rights reserved.)

WASHINGTON, D.C. – Joe Biden is dangling a history-making promise shortly before South Carolina's presidential primary on Saturday, the first 2020 contest featuring a majority black electorate. Elect him president, Biden says, and he might nominate the first black woman to the Supreme Court.

“As president, I’d be honored, honored to appoint the first African American woman. Because it should look like the country. It’s long past time," Biden said Wednesday about the Supreme Court. He was repeating a suggestion he made in the closing minutes of Tuesday's Democratic debate in Charleston.

But if Biden or any other Democratic candidate wants to nominate the first black woman to the court, they would have to look beyond the pool of federal appeals court judges whom presidents have tapped for all but one of the last dozen nominees to the high court.

Only five black women are currently appeals court judges, and each of those women is 69 or older this year according to a Federal Judicial Center database. Still, there are women who would be obvious choices from politics, advocacy groups and state and other courts.

“The field would really be wide open,” said Sheldon Goldman, a professor of political science at the University of Massachusetts Amherst and an expert on the selection of federal court judges. He said legal scholars or state attorneys general could also be choices.

Biden's comments are reminiscent of a pledge by then-Republican presidential candidate Ronald Reagan in 1980 to nominate a woman to the Supreme Court in one of the first vacancies in his administration. Reagan ultimately nominated Sandra Day O'Connor in 1981.

O'Connor retired in 2006 but she was followed by three women who still sit on the the court: Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Sotomayor's 2009 confirmation made her the court's first Hispanic justice. Famed civil rights lawyer Thurgood Marshall, who joined the court in 1967, and Clarence Thomas, who replaced him in 1991, are the only black justices to serve.

Lawrence Baum, a professor emeritus at Ohio State who has studied the court, said one prominent choice for a Biden if he wanted to nominate a black woman to the Supreme Court would be California Sen. Kamala Harris, whose own bid for the Democratic nomination made her more widely known nationally. Biden and Harris, who was previously California's attorney general, tussled memorably on the debate stage, but Biden also called her a “solid person, loaded with talent.”