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PERSPECTIVE: Why Isn’t Michelle on Biden’s SCOTUS Shortlist?

Created: 28 January, 2022
Updated: 26 July, 2022
6 min read
Arturo Castañares

President Joe Biden will soon be nominating someone to replace retiring Supreme Court Justice Stephen Breyer, and Biden has committed that it will be an African-American woman he appoints to the highest court in the land. 

Biden made a similar commitment when he was running for President when he said he would choose a woman as his running mate, and later added that it would be a woman of color.

True to his word, Biden chose California’s junior United States Senator, Kamala Harris, to be his Vice-Presidential running mate. Harris, a former California Attorney General and San Francisco District Attorney, made history as the country’s first woman and first person of color to serve as Vice-President.

Several names have been floated as potential Supreme Court nominees, including DC Circuit Judge Ketanji Brown Jackson, California Supreme Court Justice Leondra Kruger, South Carolina US District Court Judge J. Michelle Childs, NAACP Legal Defense Fund President Sherrilyn Ifill, North Carolina Supreme Court Associate Justice Anita Earls, New York University law professor Melissa Murray who wrote the first casebook covering the field of reproductive rights and justice, and a few other very qualified African-American woman. 

These are all lawyers and judges who would each bring an important voice and view to the high court that will soon be hearing cases on affirmative action, abortion, voting rights, and other issues where a woman, especially a Black woman, could help better inform the Court during its deliberations. 

But one name that is conspicuously missing from Biden’s list of potential nominees would bring a unique set of skills and experiences, and also an historic importance that none of the others could: Former First Lady Michelle Obama. 

Obama, who served with dignity and grace during President Barack Obama’s historic presidency, is also a Princeton University honors graduate and Harvard Law School-educated attorney. 

Years before her husband was elected President, Michelle Obama served as a lawyer for the prestigious Chicago law firm of Sidley & Austin before being appointed as the Assistant Commissioner of Planning and Development for the City of Chicago. 

Mrs. Obama later served as the Associate Dean of Student Services for the University of Chicago, director of the City’s University Community Service Center, and Executive Director for Community Affairs for University of Chicago Hospitals. 

During her eight years in the White House, Mrs. Obama launched the national “Let’s Move!” campaign to reduce childhood obesity, launched the “Joining Forces” veterans’ campaign with then-Second Lady Jill Biden, launched the global “Let Girls Learn” campaign focused on girls’ education, and also launched the “Reach Higher” higher education initiative.

Not to be forgotten, she also released two books, won a Grammy Award for her recording of one of those books, and became the first First Lady to guest edit an entire magazine issue when she directed the July-August 2015 edition of More, a woman’s magazine which that month highlighted woman who influenced Mrs. Obama during her years in the White House. 

But, beyond all these personal accomplishments, Michelle Obama also lived the shared experiences of her husband’s two terms in the White House as the country’s first Black President. 

Although Barack Obama grew up as the mixed-race son of a White woman from Kansas and a Black immigrant from Kenya, Michelle Obama is the daughter of African-Americans who trace their families directly back to relatives born into slavery during the darkest chapter of our history. 

Mrs. Obama is the epitome of the American dream, where anyone from any background can not only aspire to -but can actually achieve- their highest dreams and aspirations.  

Surely, even just the mention of Mrs. Obama’s name will bring screams of nepotism and political gaming, but her connection to the former president shouldn’t automatically disqualify her. 

Some will argue her history and celebrity status would be a distraction on the Court, but she wouldn’t be the first former resident of the White House to serve on the distinguished bench. 

William Howard Taft was appointed as Chief Justice of the Supreme Court after having been President, so Mrs. Obama shouldn’t even be as controversial as that. 

The Democrats have control of the Senate right now, albeit only if all 48 Dems and 2 independents hang together to make an appointment by themselves if Republican decide not to put up any votes. 

In the case of a 50-50 vote, however, the tie-breaking vote would come from the sitting Vice-President. 

The delicious irony that the deciding vote to appoint the country’s first Black woman to the Supreme Court could come from the first woman and first POC to serve as VP would be celebrated by Democrats and be sure to trigger Republicans into a full-blown fit. 

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Although they will surely complain of a Democratic power-play, Republicans rammed through President Trump’s nomination of Amy Coney Barrett in 2020 without a single Democratic vote when the GOP still had control of the Senate in what became the fastest Supreme Court appointment in US history.

And for those who might argue Obama shouldn’t be appointment to the Supreme Court because she has never been a judge at any level, 41 Justices had not previously served on any bench before being appointed, including Louis Brandeis, Earl Warren, former Chief Justice William Rehnquist, and current Justice Elena Kagen, just to name a few.

President Joe Biden has had a rough first year in office: COVID has continued to rage, inflation has spooked consumers, gas prices have stayed stubbornly high, and Russia has amassed 10,000 troops along the Ukrainian border in what could become an international crisis if they invade their neighbor.

Making a high-profile appointment to the Supreme Court could give him a shot of confidence and a bump in the polls just as he heads into the mid-term elections.

Biden has made it clear that he wants to nominate someone to the Supreme Court who reflects the current realities of America, just like Lyndon Johnson did in appointing Thurgood Marshall as the first Black in 1967, Ronald Reagan in appointing Sandra Day O’Conner as the first woman in 1981, and when Barack Obama elevated 2nd Circuit Court of Appeals Judge Sonia Sotomayor as the first woman of color, first Hispanic, and first Latina member on the Court.

Appointing a Black woman to the Supreme Court isn’t window dressing, as some critics have charged; it is the fulfillment of the American dream where hard work and dedication can lead anyone from any background to the highest levels of success. 

Any one on Biden’s list of potential nominees would serve our country well, but the appointment of an intelligent, experienced, inspirational great-great-granddaughter of slaves to the Supreme Court would showcase the best of our country and again reinforce our credo of liberty and justice for all.

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