WASHINGTON — Joe Biden has promised that if elected president, he'd put the first black woman on the Supreme Court. To make good on that pledge, he’d have to look in some atypical places.
Supreme Court justices are usually elevated from a federal appeals court. Eleven of the last 12 confirmed justices were plucked from an appellate court — the exception was Elena Kagan, who was the U.S. solicitor general, a position so embedded with the institution it has been nicknamed “the tenth justice.”
Only five black women are now on U.S. appeals courts, and all of them will be 68 or older this year, according to data compiled by NBC News from the Federal Judicial Center.
Biden would face pressure to pick someone younger who could secure the seat for a generation or more. None of the last seven confirmed justices were older than 55 when nominated.
There are only nine Democratic-appointed black women on the federal bench younger than 55 this year. All are district court judges picked by President Barack Obama. The youngest is Leslie Abrams Gardner, 45, the sister of Biden vice presidential contender Stacey Abrams. Another name that stands out is Ketanji Brown Jackson, 49, a judge in Washington who was on Obama’s Supreme Court shortlist in 2016.
The numbers reveal the limited presence that black women have in the federal judiciary even as they form a constituency so important to the Democratic Party that it prompted the party’s likely nominee to make such an unprecedented pledge. African American women comprise just 5 percent of the federal judiciary — a share that was even smaller before Obama’s presidency.
“From a sheer numbers perspective, he's going to have to look outside those currently serving on the bench,” said Brian Fallon, the executive director of the progressive advocacy group Demand Justice. “It's somewhat embarrassing that there aren't more people on the federal courts right now that are black women who’d be natural to put on his shortlist.”
Biden's pledge also shines a light on the stakes in the 2020 election for the high court, where conservatives hold a 5 to 4 advantage. The future of Justices Ruth Bader Ginsburg, 87, and Stephen Breyer, 81, both Democratic appointees, looms large over the future of big issues such as abortion rights and civil rights. The next oldest justices are GOP-picked Clarence Thomas, 71, and Samuel Alito, 70.
A Biden campaign spokesman declined to say if he'll release a list of Supreme Court prospects, as Donald Trump did ahead of the 2016 presidential election, or whether he's open to nominating a woman who hasn't served as a federal judge.
Overall, there are 48 women who are of African American descent and currently sitting federal judges, but Biden’s realistic options on the bench would be fewer. Only 11 will be younger than 55 on Election Day — two were appointed by Republicans and are ideologically out of sync with progressives.
Demand Justice has floated outside-the-box prospects on its shortlist, including 43-year-old California Supreme Court Justice Leondra Kruger; civil rights lawyer, advocate and author Michelle Alexander; NAACP Legal Defense Fund counsel Sherrilyn Ifill; and NYU law professor Melissa Murray.
Fallon said it'd be a good thing to look outside the federal courts at people with diverse backgrounds, including civil rights lawyers in the mold of Thurgood Marshall and Ginsburg. “You shouldn't have to be a corporate lawyer and have a stint on the federal bench to be groomed for the Supreme Court,” he said.
And it wouldn't be the first time a president has had to look in unusual places for a history-making Supreme Court nominee. In his 1980 campaign, Ronald Reagan promised to put the first woman on the court, and ended up picking Sandra Day O'Connor, then a judge on the Arizona Court of Appeals.
Biden made his pledge days before the South Carolina primary. “I’m looking forward to making sure there's a black woman on the Supreme Court, to make sure we, in fact, get every representation,” he said then. It was the first majority-black contest on the Democratic calendar and handed Biden a dominant victory that revived his campaign. One by one, he vanquished his rivals.
Turnout among black voters, a core Democratic constituency, fell in 2016 after rising to historic levels during Obama’s victories in 2008 and 2012. The drop-offs were in swing state metropolitan areas such as Detroit, Milwaukee and Philadelphia.
Aimee Allison, the founder of She the People, an activist group that aims to elevate women of color, said Biden’s pledge was “a step in the right direction.” But she warned him not to use it as a justification to pick a white running mate. Biden has pledged to choose a female vice president.
“However, this is still not enough, especially considering his treatment of Anita Hill during the Thomas confirmation,” Allison said in a text message. “Appointing a Black woman to the Supreme Court may be his attempt to right past wrongs, but it does not make up for a spot on the ticket. If he wants to inspire women of color to not just vote, but organize our communities, then he needs to commit to selecting a Black woman as his VP.”
Some Democrats speculate that Sen. Kamala Harris, D-Calif., and Abrams, a former Georgia gubernatorial candidate — both lawyers — will find their way on to Biden's Supreme Court shortlist if they are passed over for vice president.
Only two black Americans have served on the nation’s highest court — Marshall, a civil rights champion, and Thomas, the staunch conservative who replaced him.
For Biden, the promise of a history-making nominee is an attempt to use the Supreme Court to galvanize Democratic voters, something that advocates like Fallon have been pushing the party to do.
"The future of the court is an issue that all Democrats, no matter who you supported in the primary, ought to prioritize," he said. "Biden's pledge gives us something more specific to rally around."