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Black women are Americans, and representation raises the bar — legal and otherwise

Comments by McConnell, Hawley and Cruz put race front and center

Ketanji Brown Jackson, seen here at her confirmation hearing last year to be U.S. Circuit Judge for the District of Columbia Circuit, is among the jurists who could be nominated to the Supreme Court by President Joe Biden.
Ketanji Brown Jackson, seen here at her confirmation hearing last year to be U.S. Circuit Judge for the District of Columbia Circuit, is among the jurists who could be nominated to the Supreme Court by President Joe Biden. (Tom Williams/CQ Roll Call file photo)

Senate Minority Leader Mitch McConnell was shocked and, indeed, insulted that anyone would ascribe even a hint of racist intent to his recent statement that divided the electorate into African Americans and Americans: “If you look at the statistics, African American voters are voting in just as high a percentage as Americans.”

On the one hand, that outrage was pretty rich coming from the man who treated the first Black president of the United States as an annoyance to be dismissed or ignored, especially when that president attempted to appoint a Supreme Court justice, one of the duties of — the president of the United States.

On the other hand, the Republican senator from Kentucky was just doing what a whole lot of Americans do: Treat “white” as the default and everyone else as someone or something “other,” and, by statement or inference, someone or something “less.”

Of course, McConnell being McConnell, he “misspoke” while explaining his stand against the shrinking voting rights of Americans who only began to fully share in the franchise after a law passed by Congress in 1965 — one that came only after fierce debate and the bloody sacrifice of civil rights workers.

It’s Black History Month, Senate minority leader. Read a book, watch “Eyes on the Prize,” examine your own party’s Southern strategy. And do it before bills that would ban teachers from talking about race in a way that could make anyone uncomfortable make their way through the legislature in your home state of Kentucky.

It could be any month, though, as the pending appointment of the next Supreme Court justice by President Joe Biden has ushered in yet another round of “Let’s pretend that all those white, male judges were perfect and perfectly qualified and these Black women on the short list with long résumés and years of experience could never measure up.”

Only white men on the Supreme Court, well, that was the way it was. If merit and good character were criteria, Black women — and representatives of Americans of every race and gender and creed whose fate has been decided by the highest court in the land — would have been appointed to the court long ago. But in those days, years, decades and centuries, the “white” was silent, and understood.

As it played out, the intentionally excluded were mere observers when the injustice the court sometimes meted out was cruel, and turned out to be so very wrong.

In one of the worst examples, the Court found 7-2 in the 1857 Dred Scott case, in the words of the majority decision written by Chief Justice Roger B. Taney, that Scott, as a Black man, “had no rights which the white man was bound to respect.” And using a states’ rights rationale so favored by succession advocates then and supporters of restrictive voting bills being passed in states across the country now, the Taney-led court ruled Congress could not prohibit slavery in the territories.

Nearly a century later, in Korematsu v. United States in 1944, in a 6-3 decision, the Supreme Court upheld the conviction of Fred Korematsu — a son of Japanese immigrants and an American citizen who was born in Oakland, Calif. — for having violated an order to report to be relocated to an internment camp during World War II. Korematsu lived long enough for his courage to be rewarded with the Presidential Medal of Freedom, awarded by President Bill Clinton.

There is no guarantee that a fairly assembled court would have rendered fair judgments. But who wouldn’t at least admit that a more representative Supreme Court, one that expands rather than excludes the list of eminently qualified candidates, is a good thing?

Well, that would be several Republicans looking to enrage a base that is threatened by any act that hints at racial progress and eager to weigh in on someone who has yet to be named. That is the point, really, as these premature commenters obviously see this “Black woman” not as an individual person but rather a vaguely threatening symbol.

I admit it can be tiring to those of us called to constantly prove or perform American-ness (or expertise, for that matter), defined by whomever is doing the asking, but it’s a ritual that’s as American as apple pie.

Unsurprisingly, count on Senate Judiciary Committee members Josh Hawley and Ted Cruz, playing down to the crowd sizing them up as 2024 presidential material, to jump to the front of the ignominious line.

Hawley mumbled something about a “woke activist,” stringing together buzzwords sure to hit a nerve. I’m not sure why he would think Biden would use Hawley’s own strict litmus test when naming a justice, though the Republican from Missouri does think quite highly of himself.

Cruz, who also falls into that category, has managed to offend even some Republicans with his comment that Biden’s promise is “offensive.” And since the Texan never knows when to stop, he had to add that it’s “an insult to Black women.”

Of all the things Cruz has been called, I don’t believe “spokesman for Black women” has ever been one of them.

GOP Sen. Lindsey Graham of South Carolina sounded quite reasonable as he endorsed a representative Supreme Court, and judged one of the women on the list, South Carolina federal District Judge J. Michelle Childs, as “fair-minded, highly gifted” and “one of the most decent people I’ve ever met.” That doesn’t mean she or any candidate would get his vote. But the fact that his calm and common sense made headlines shows how far the base sentiment of his party has fallen.

Maybe Graham remembers that there was no such hand-wringing when the GOP’s secular saint Ronald Reagan promised during his 1980 campaign to appoint a woman to the high court and followed through. Reagan, of course, did not have to say she would be white.

The fulfillment of Reagan’s pledge, Justice Sandra Day O’Connor, said she learned much from the court’s first African American justice, Thurgood Marshall, with whom she served. Though they were far from politically aligned, when Marshall retired from the court in 1991, O’Connor said: “His was the eye of a lawyer who saw the deepest wounds in the social fabric and used law to help heal them. … His was the mouth of a man who knew the anguish of the silenced and gave them a voice.”

Amplifying rather than silencing a voice that might bring a different perspective to the highest court in the land is as American as it gets.

Mary C. Curtis has worked at The New York Times, The Baltimore Sun, The Charlotte Observer, as national correspondent for Politics Daily, and is a senior facilitator with The OpEd Project. Follow her on Twitter @mcurtisnc3.

CQ Roll Call’s “Equal Time with Mary C Curtis,” examines policy and politics through the lens of social justice. Please subscribe on AppleSpotify or your preferred platform.

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