Senate Majority Leader Mitch McConnell (R-Ky.) began politicising Justice Antonin Scalia’s death on the very day of the justice’s passing. Scalia’s seat on the Supreme Court, McConnell said, should not be filled with President Obama still in office—an unprecedented suggestion for the modern era when it comes to a Supreme Court vacancy with so much time left in a presidency.
Given the high stakes in the Court this term—with key cases on immigration policy, the nature of congressional apportionment, climate policy, and affirmative action on the docket—and McConnell’s immediate reaction, Americans should be ready for the gloves to come off in the Beltway. As Republicans steel themselves to do everything they can to block Obama’s imminent nominee, the president should exercise his constitutional responsibility to nominate without delay. And his best choice would be to nominate a woman of colour who would stand up for communities still bearing the brunt of discrimination and disparate treatment.
First, increasing the Court’s diversity would be an intrinsically good decision. The Supreme Court remains male-dominated (six men to three women until Scalia’s death) and white (seven white justices to two justices of color). Neither is a good reflection of our country, the population of which is more than 50 percent female and nearly 40 percent people of color. A more diverse Court can better address the issues of a diverse America. As White House Counsel Kathryn Ruemmler has said: “Diversity in and of itself is a thing that is strengthening the judicial system. It enhances the bench and the performance of the bench and the quality of the discussion . . . to have different perspectives, different life experiences, different professional experiences, coming from a different station in life, if you will.”
The Obama administration has already made progress by appointing two women (Elena Kagan and Sonia Sotomayor), one of whom is Latina (Sotomayor), and their decisions have demonstrated an awareness of America’s diversity across class, gender, race, and ethnic lines. By nominating a woman of colour committed to justice for all, Obama would bring the court closer to gender, racial, and ethnic parity—five men to four women, and six white justices to three justices of colour.
With so many important cases coming up on the Court’s docket that affect women, people of color, and immigrants—for instance, US v. Texas (the challenge to Obama’s executive actions on immigration), Evenwel v. Abbott (the challenge to whether all residents should be counted for Congressional apportionment), and Whole Woman’s Health v. Hellerstedt (the challenge to a Texas law that would shut down most of a state’s abortion clinics)—the argument is even clearer. For years, conservatives have used the Court to target policies that benefit women, working people, and communities of colour—and the Court needs a new ninth justice who can stand up strongly against this onslaught on the basis of her lived experience. Obama must nominate someone who meets this criterion.
Second, nominating such a candidate would be good politics. Should Republicans try to block the historic nomination of a second woman of colour to the Court (and possibly the first African-American or Asian-American woman), they would risk boxing themselves in for the presidential election. The Republican establishment is already worried that GOP candidates have alienated voters of colour and women, with proposals that most of these communities perceive as anti-immigrant, anti-black, and anti-woman.
Across the Republican field, there is virtual unanimity regarding the need for enforcement-only immigration policies that would seek to deport eleven million undocumented immigrants, opposing gender equity and woman’s reproductive rights, and dismissing calls for police reform. These positions are unpopular outside of the older, whiter Republican primary electorate, and they put the Republicans at risk for the general election. If, in 2016, the Republicans do not substantially improve on Mitt Romney’s abysmal performance among Latinos, immigrants, and women, recapturing the White House will be virtually impossible.
Should Republicans block a woman of colour, Democrats and progressive allies will rightly attack them for blocking a historic nominee who would deliver much-needed diversity to the Court. This would be a perfect opportunity for effective progressive offense. Should the Republican Senate majority filibuster, with the Republican presidential candidates egging them on (many have already taken this position), progressive movements for women’s rights, racial justice, and immigrants’ rights would be ready to stand up and denounce their obstructionism. The call would be clear: Republicans must stop blocking progress for our communities. Meanwhile, Democrats would gain a clear advantage in the Presidential election, as well as in contests for the Senate, which is also up for grabs this year.
Lest anyone argue that such an appointment would somehow risk weakening the Supreme Court, let us be clear that there is no shortage of women of colour ready to assume this position and stand up against the judicial activism on the Right. While we are not backing any particular candidate, names on a potential short list could include California Attorney General Kamala Devi Harris (the first African-American and Asian-American Attorney General in California), federal judge Jacqueline Nguyen (the first Vietnamese American and first Asian-Pacific woman to serve on a federal appeals court), U.S. Attorney General Loretta Lynch (who, after all, was recently confirmed by the Senate), federal judge Pamela Chen (the first Asian-American lesbian to serve on the federal bench), or federal judge Nitza Quiñones Alejandra (the first openly gay Latina on the federal bench). An openly LGBTQ nominee would carry the added benefit of being the first such person nominated to the Supreme Court in our nation’s history.
If Obama nominates a woman of colour ready to protect the rights of women, working people, immigrants, and people of colour, he would be taking strong action to increase the diversity of a Supreme Court that is both too male and too white. He would also make it harder for Republicans to block the appointment, creating a win-win situation for our democracy and his own Democratic Party.
Daniel Altschuler (New York & St Antony's 2006) read an MPhil in Development Studies and a DPhil in Politics at the University of Oxford. He is the managing director of ‘Make the Road Action’ and can be reached on @altochulo. This article is co-written with Cristina Jimenez and originally appeared in the ‘Congress Blog’ on Friday 19 February 2016.