President Barack Obama has made diversifying the federal judiciary one of the defining features of his time in office. For that reason, his selection of Merrick Garland for the Supreme Court on Wednesday left some African-American advocates perplexed, believing the pick could dilute his legacy.
The country’s first African-American president made Sonia Sotomayor the first Hispanic justice in 2009. The next year, he selected Elena Kagan, a caucasian woman, to replace John Paul Stevens, a caucasian man.
When Justice Antonin Scalia died last month, Obama, with just 11 months remaining in office, was handed one more chance -- however slim amid GOP resistance -- to name an African-American judge to the high court.
But after thinking “long and hard about this,” as his closest aides put it, Obama selected Garland , another caucasian male, to replace Scalia after concluding the 63-year-old D.C. appeals court chief judge was the best candidate. White House officials pointed out Obama has nominated more African-American judges to federal courts than any other president, a fact African-American acknowledge.
White House Press Secretary Josh Earnest said administration officials consulted with a "diverse array of individuals" about the court vacancy.
"The president took that advice quite seriously and considered a diverse array of candidates," Earnest said. "The president ultimately settled on Chief Judge Garland for one reason and one reason only, and that is simply that he believes that Chief Judge Garland is the best person in America to do that job and that is how the president made that decision."
To some, that’s not enough. Obama missed an opportunity to advance his own legacy, they argue.
Congressional Black Caucus Chairman G.K. Butterfield, D-N.C., said that as “the country continues to become more diverse ... it is imperative that the court reflects an increasingly more diverse country.”
Butterfield and others were hopeful Obama would seize an opportunity to make history by nominating an African-American woman.
“It is also imperative that the perspectives of African-American women are represented, a voice that has been nonexistent since the court’s inception in 1789,” Butterfield said. “This [was] a chance for the bench to reflect the rich tradition of African-American women lawyers and the impact that they have had on our nation.”
The president reportedly considered Ketanji Brown Jackson, an African-American female jurist who was confirmed by the Senate in March 2013 to the U.S. District Court for the District of Columbia.
Though she was among five finalists, Jackson had been ruled out by the time Obama's final three candidates was leaked last Friday. Another African-American woman, Attorney General Loretta Lynch, who was confirmed by the Senate last year, was also in the running but ultimately withdrew her name.
“It will really leave an incomplete legacy,” said Barbara Arnwine, president of the Transformative Justice Coalition and a longtime law professor. “It signals a misunderstanding of the complete power of his presidency. There are so many reasons why it’s right to put an African-American woman on the court. And there are so many good candidates.”
She pointed to Bernice Donald, a judge on the U.S. Court of Appeals for the Sixth Circuit, and Wilhelmina Wright, who's on the U.S. District Court for the District of Minnesota and a former Minnesota Supreme Court associate justice.
“They’re just the tip of the iceberg,” Arnwine said. “It’s just sad. … It’s confusing. I’m not sure what they’re doing or why.”
Democracy for America Executive Director Charles Chamberlain called the Garland pick “deeply disappointing.”
“President Obama failed to use this opportunity to add the voice of another progressive woman of color to the Supreme Court,” he said in a statement, “and instead put forward a nominee seemingly designed to appease intransigent Republicans rather than inspire the grassroots he’ll need to get that nominee through the Senate gauntlet.”
To be sure, the White House is constantly aware of Obama’s special place in history -- and in the hearts of the African-American community.
On Tuesday, a screen behind the podium in the White House briefing room displayed recent tweets from the administration’s official account. One touting the president’s meeting with classical ballet dancer Misty Copeland read, “The first black president. The first black principal dancer.”
Some African-American leaders and groups are fine with Obama’s decision.
“The only obligation the president has, the only one, is to put forth a nominee,” Congressional Black Caucus Secretary Rep. Karen Bass, D-Calif., said in a telephone interview. “Of course, I would love an African-American man or woman, especially because the community has not felt like it has a voice on the court.”
Speaking the day before Garland appeared with Obama in the Rose Garden, Bass said of a non-black nominee: “I don’t think it would be a letdown” to the African-American community .
And the NAACP, perhaps the country’s highest-profile civil rights organization, also expressed no public complaints.
“Based on what has been shared publicly, Judge Garland brings a wealth of legal and judicial experience as a nominee to the nation’s highest court,” NAACP President and CEO Cornell William Brooks said in a statement. “We look forward to engaging in a thoughtful and thorough analysis of Judge Garland’s record.”
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