The passing of Supreme Court Justice Antonin Scalia was immediately marked by debate over who would replace him on the bench, a true testament to the legacy of a man who served on the highest court in the land with both anti-Black ideology and disregard for women’s rights for nearly 30 years. Within minutes of learning that he had died, I myself wondered, “Is now the time?” Will it be a sister? Could it be a sister?
Alas, the 161st decision to not nominate a Black woman to the Supreme Court was made by a Black male president who was elected due in part to the overwhelming support of Black female voters, who would then move three generations of Black women into the White House. Prior to nominating Merrick Garland, henceforth to be referred to as “old boy” (that’s more than a colloquialism uttered in annoyance— at 63, he is the oldest person to be nominated since President Nixon tapped 64-year-old Lewis F. Powell in 1971), President Obama has successfully placed two women on the court. I am tired of feeling this complicated about politics.
Let’s go back a few years — 25 to be exact. It’s 1991. Thurgood Marshall—whose picture could be found in classrooms throughout the school where I was enrolled as a second grader—was retiring from the high court, tasking President George H.W. Bush with replacing the first African American occupy those chambers. He selected Clarence Thomas, a conservative who shared nothing in common with the civil rights icon he would replace other than the color of his skin.
Thomas’s confirmation would be complicated, of course. Not only did racial justice and women’s rights groups take great issue with his politics, but a young law professor by the name of Anita Hill came forward with allegations that he’d sexually harassed her when she’d worked him years prior. The Georgia-native infamously dismissed Hill’s claims as “a high-tech lynching,” after she testified before the Senate Judiciary Committee and would eventually be confirmed by a 52-48 vote.
I was eight years old, so I won’t pretend that I was fully cognizant of how incredibly complicated all of this was at the time. However, it was made clear to me even then that there were some African-Americans who were so invested in either keeping a Black justice on the court or refuting stereotypes about Black men as sexual predators, that they were unwilling to take seriously the possibility that Hill was telling the truth or find her allegations damning enough to turn their back on Thomas. I’ll never forget hearing my beloved second-grade teacher say to another adult, “I don’t understand why she’s trying to keep a Black man down.” The statement bothered me deeply in ways I couldn’t articulate. Why should Clarence Thomas’ success matter more than Anita Hill’s right to be treated fairly in the workplace?
Fast-forward back to Scalia’s unexpected death, days after the trailer for HBO’s Confirmation was released. As we prepare to look back at the Hill-Thomas saga with more widespread acknowledgement of workplace harassment as unacceptable, and a somewhat heightened understanding of how the intersection of racism and sexism harms women of color, I wondered: “Is this the time?”
There have been 112 Supreme Court justices in the history of the United States, just 6 of them non-White males and none of them Black women like myself. That makes me angry. I am certain that members of any number of marginalized groups share these feelings, but they can stand up for themselves. Frankly, I’ve grown tired of Black women so often being tasked of constantly thinking of the needs of all people when it seems other folks think of our needs and what we have contributed since we arrived on these shores so infrequently.
Black girls and women, who are often devoured by both the spirit and the letter of the law in this land, deserve a seat at the table. Am I pretending that Thomas speaks to the hearts, minds or needs of Black men and boys? Absolutely not. Dismissing the good sense that Ruth Bader Ginsburg has displayed throughout her time on the bench? No. But as my mentor-friend Michael Eric Dyson put it to me recently, “This is not about bean counting and diversity awarding. This is about the critical business of the Constitution and representative democracy, which is missing the critical lens of a Black woman on the landscape of American politics.”
I don’t know if Mr. Obama was playing chess, or checkers, or simply chose the person he thought would be best for the job. But I know that the classic liberal “Here is a compromise that could ostensibly please all, or please none, but it’s a compromise and thus, a good thing” move feels even more unsettling in the time of a likely GOP presidential nominee who required great arm twisting to disavow David Duke and the Klu Klux Klan.
Even a moderate White man like old boy will face a great challenge to be confirmed, as this Senate has declared Obama as their sworn enemy time and time again, with less innuendo and more blatant disrespect as time goes on. What happened to "No f*cks to give" Obama, “I won both’ of ‘em” Obama? If this is just a matter of making the symbolic gesture of nominating someone who would undoubtedly fail to be confirmed, why not make a powerful statement while doing so?
Twenty-five years after a judge who allegedly sexually harassed a Black woman was confirmed to the Supreme Court, the man who seems to have served as the Geppetto to his Pinocchio dies and leaves an opportunity for Black women to get a bit of long-overdue reciprocity for our service to the United States and the indignity faced by the Anita Hills of this country. Alas, we didn’t get it this time. We didn’t even get the standard consolation prize—“Support him, he’s a Black man!” “She’s White, but at least we got a woman!”
Perhaps some day we will get true insight into Mr. Obama’s thoughts on what is likely his last Supreme Court nomination, via a memoir or post-White House interview. I look forward to learning more about his process when he can speak more freely and without triggering further Congressional obstruction than he does by simply clocking in to work each day. Could the painfully slow confirmation of Attorney General Loretta Lynch have kept him from making that move again, or dissuaded any Black woman who may have been approached? I wish I knew.
In the meantime, I wonder if or how Black women voters will be impacted by this latest American letdown. Will we show up and show out in November, yet again? Will we demand that we are repaid for our efforts if we elected the next president? Will we withhold our vote in protest, or due to the lack of enthusiasm matching the fire that sent so many of us to stump for Obama? I honestly don’t know. But I do know that my clock is permanently set to Black Girl Time, and I’m sick of waiting for what we deserve.