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.


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  • Misty_Moonsilver

    Wooow. Anyway black woman here, voting Mitt Romney for so many other reasons besides race. He has a plan to fix our economy, he has values,and he cares about America as a whole. You people are idiots for accepting the garbage that Obama has said about Romney.

    • edub

      Yawn. Hysteria. It’s such a patronizing conversation starter–especially if you want us to engage in intellectual thought. So, is this article a look into the mindset of today’s black woman? Do black women live in fear? Is that the only emotion we respond to? And if so, who’d the big bad wolf?

      It’s Mitt Romney and not the looser who is more than likely going to impregnate you and leave you in a state of perpetual poverty?

      It’s Paul Ryan and not those fellow black women who want to convince you that “no wedding no womb” is a horrible idea, or that marriage outdated?

      It’s republicans and not the thug who will straight up beat you like a man because you ask him to leave your house?

      Did you all read the jobs report? Seems like our fear needs to move a little closer to home.

    • Keepitreal

      Thank you, every 4 years its the same condescending bullshit and it works just like mindless zombies the masses buy into it, SSDD and then scratch their heads at why the status quo remains.

    • Kay

      Um, I don’t know about you, but I want more than just a job. I would like us to return to a strong productive and manufacturing base. I would like college grads to have CAREERS. We are instead headed for a service economy which produces nothing, except of course dead end labor. With most companies getting tax write offs to go over seas, our economy will continue to be in a lurch. Unless Romney plans on bringing American companies back to our shores (which I doubt, considering that the company that makes his campaign shirts is based in China), we’ll continue to be screwed by corporate execs.

      Second, I don’t need anyone telling me when I can have kids, and how. If you don’t agree with abortion, don’t get one, but let that be a decision for that person. I don’t need all these red herring issues clouding the fact that Romney has a bad economic policy (or rather, lack of one).

  • Benji for Romney

    You have to be ignorant to believe. Obama = hardworking tax payers pay for you and your children to live.

    Romney = you are a hard working tax payer and you pay for your own life and children.

    Obama supporters just want to sit on their butts and collect their free checks that other people pay for. They want to lay on their backs and reproduce and collect their welfare, wic, ebt, and free housing. These are the people that are ruining our country,

  • Barbara2

    Romney is the rich devil inarnate…