President Barack Obama needed only to look across his dinner table each evening or in the bed next to him each night to see a well-educated and well-qualified black female attorney who could have made a great U.S. Supreme Court nominee.
For reasons surpassing my understanding, however, the president apparently did not include a black female jurist on his so-called "short list" of choices to replace retiring Justice John Paul Stevens, even though no black woman has ever served on the high court.
There's no doubt that Solicitor Gen. Elena Kagan, a white woman who is a former Harvard Law School dean and Ivy League graduate, is well-qualified. Yet, of those jurists considered seriously by the president (Washington, D.C., Appeals Court Judge Merrick B. Garland, a white male; U.S. Appeals Court Judge Diane Wood of Chicago, a white female; and a spate of others leaked to the media since April) only one black judge, Leah Sears Ward, was a contender.
A few of the women who should have been in contention are Marian Wright Edelman, longtime president of the Children's Defense Fund and the first black woman admitted to practice in the state of Mississippi in the 1960s; Judge Janice Rogers Brown, who sits on the U.S. Court of Appeals, D.C. Circuit, and who Obama supported while he was a senator; Harvard Law professor Lani Guinier, who, despite the controversy when she was nominated by President Bill Clinton to be an assistant U.S. attorney general, is an excellent legal scholar; and Elaine R. Jones, formerly of the NAACP Legal Defense Fund, who has three decades of experience as a litigator and civil rights activist.
The question many in the black female legal community (of which I am a part) are asking is why did the sisters get passed over once again?
As I write about extensively in my forthcoming book, Black. Female. Accomplished. Redefined., (Smiley Books, A Hay House Publishing Partner, October 2010) black women in the legal profession have had a difficult time making it to partner status in big firms, attaining high positions as general counsel of the nation's top corporations and landing jobs as deans of top law schools. These achievements can be stepping stones to becoming a high-profile jurist, which, in turn, can lead down the path to top judicial appointments. Yet, despite law firms' diversity efforts over the past two decades, they still have problems retaining and promoting black women. This is a great mystery, considering the fact that more than 50 percent of law school students are female and that white women have made great strides into the upper echelons of the profession. Not so for black women and women of color in general, which is the reason I vigorously supported Justice Sonia Sotomayor's nomination.
The reasons black women have been passed over once again for the nation's high court is simple. As the American Bar Association wrote in its 2007 report, titled "Visible Invisibility: Women of Color in Law Firms":
Women of color experience a double whammy of gender and race, unlike white women or even men of color, who share at least one of these characteristics (gender or race) with those in the upper strata of management. Women of color may face exclusion from informal networks, inadequate institutional support, and challenges to their authority and credibility. They often feel isolated and alienated, sometimes even from other women. Women of color in law firms have been consistently invisible and often ignored in spite of many of the diversity efforts under way in law firms. Our progress on diversity generally has been slow, but our progress with women of color has been even slower.
We need to do a better job of making sure that the black female talent we do have in the United States is better groomed, and that the "bench" is filled with some heavy hitters who can step up and easily fill the nation's top law firms, courtrooms and courts. It bothers me that since the first black woman, Charlotte E. Ray, was admitted to the Bar in 1872, we have not seen fit to elevate a sister to the Supreme Court.
Kagan will make a fine justice if confirmed, and she will be the fourth woman in history to sit on the U.S. Supreme Court. I just can't help wondering how long black women will have to wait until we see someone who looks like us in that position. Until then, I suppose we will remain largely invisible and have to patiently wait our turn.
Sophia Nelson, Esq., is the author of the forthcoming book, Black. Female. Accomplished. Redefined., and is a regular contributor to The Root.