Betty Winston Bayé Asks The Same Question I Have Asked: In Seeking A New Justice, Why Not A Black Woman?

In seeking a new justice, why not a black woman?
By Betty Winston Bayé

White men, white women, black men, Jews, Catholics, gentiles, liberals, conservatives, most recently a Hispanic woman and Harvard and Yale law graduates out the ying-yang (i.e., seven of the current nine are graduates of those law schools) have been confirmed as justices of the U.S. Supreme Court. Of the 111 justices so far, most were white male Protestants. The first Jewish justice, Louis Brandeis of Louisville, was appointed to the lifetime job in 1916. The first African-American justice, Thurgood Marshall, was appointed in 1967. The first white female justice, Sandra Day O'Connor, took her seat in 1981, and just last year the first Hispanic justice, Sonia Sotomayor, was confirmed to the Court.

But what the U.S. Supreme Court has never had is a black female justice.

Is now the time? I'm just asking since we do keep score of such things for posterity, of course, but also to suggest how as a society, the United States continues to evolve. Meanwhile, the pitched, and sometimes quite bitter battles in the Senate over judicial nominations — which we should fully expect this summer after President Obama offers his nomination to fill the seat of retiring Justice John Paul Stevens — rarely are fought without a big deal being made of a nominee's race, gender, religion, education and personal narrative.

Having just celebrated my birthday, Justice Stevens' announcement caused me to wonder, why not a black female Supreme Court justice? After all, so many changes have come to pass in my lifetime that I never imagined happening when I was growing up. Ideally, almost anything is possible. But some change takes inordinately long, especially when you're young and impatient. Other changes, however, seem to occur within a figurative batting of an eye — when you may want them, but are not really ready. And doomsday scenarios notwithstanding, it's pretty amazing how most Americans (I said most, not all, never all) adjust to change, even change that in the beginning they may not have understood or even liked. So much of what we now praise, or consider business as usual, started off being hated and feared.

But back to the Supreme Court.

I don't have any particular black woman in mind for the President to nominate. However, I know that though no black woman ever has made it to the high court, it's certainly not because none was ever qualified.

Many might be surprised that the Constitution has no requirements for who can be nominated or appointed to the lifetime job. There are no age requirements. No citizenship requirements. No educational requirements, and not even as most might expect, that a Supreme Court justice prior to appointment have been a lawyer or a judge. The Constitution doesn't even set the number of justices; Congress was left that duty.

But though I have no particular woman in mind, I do have a few ideas about the kind of black woman I'd like to see seated on America's most elite judicial bench. I'd like one with an outsized personality, and who when she speaks, might cause you to step back, look and say quite simply, “Wow!”

I'm thinking of a black woman who is wise beyond measure. The sort of woman who can actually convince you that she knows for a fact where the light goes when you turn the switch to off. I'm thinking of an imposing type of woman, which let me add quickly has nothing to do with physical size, but the size of her heart, her curiosity and her intellect. I'm thinking of a woman who doesn't simply demand respect, but commands it because she's earned it. I'm thinking of a woman who is courageous, honest, astute, scrupulously fair and who, though willing to learn from those who've been there longer, won't be cowed by them either.

I'm thinking about a woman who, quite often with just a look, demands that you account for yourself. Account for what you're saying, for what you did and why you did it in the first place. A woman who won't discriminate and to whom it matters less whether you're her kind, but whether you've made the best and the most compelling argument to necessitate striking down or amending what's gone on before.

I'm thinking about a justice who won't be impressed by the pedigree of those who stand before her, but rather considers the issues at hand. I'm thinking of a woman who respects the Constitution, but understands that it is manmade, living and, therefore, not infallible.

I'm thinking of a black woman justice with a philosophy not simply shaped by her formal education, or her political affiliation, but by common sense and real-world experience, practicality and the ability, no matter how skillfully a tale is woven, to spot the difference between the truth and a lie.

Now maybe this is asking too much of the first black Supreme Court justice. But in my experience, “the first” always bears a heavier burden than those who come after the trail has been blazed. And, fair or not, “the first” almost never is given the luxury of not having to be above average. But is this the time for a black woman on the U.S. Supreme Court? I think so. But if for whatever reason, you'd say not now, I ask you if not now, then when?

Betty Winston Bayé's column appears Thursdays in the Community Forum and online at www.courier-journal.com/opinion. Her e-mail address is bbaye@courier-journal.com.