Pastor’s Pen_March 6, 2022

The following is Part I of an article contributed by Atty. Ayanna D. Hawkins. In observance of Women’s History Month, I thank Atty. Hawkins for highlighting some of the qualifications and contributions of Black women in the legal profession in America.

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 BLACK WOMEN ARE QUALIFIED FOR ANY AND EVERY LEGAL POSITION!

On January 26, Associate Justice Stephen Breyer announced his intention to retire from the U.S. Supreme Court at the end of the 2022 term. Perhaps in anticipation of this historic opportunity, President Joseph Biden, who made elevating a Black woman to the Supreme Court one of his campaign promises, has spent his first year in office, identifying potential nominees. As of this month, President Biden has nominated twenty Black women to the federal bench, eleven of whom have been Senate-confirmed, positioning any one of those candidates for his short list for the Supreme Court.

No sooner than the vacancy was announced and President Biden’s intentions were reiterated, several Senators from the opposing party pounced. Senator Ted Cruz (R-TX) called the announcement “racist” and “offensive to the 94% of the population that are not Black women”. He stated that as an obvious beneficiary of affirmative action, the potential nominee would have her accomplishments overshadowed by concerns that her opportunity came solely due to race. Senator Roger Wicker (R-MS), agreed with that assessment and declared that he would not support the nominee, prior to any hearings or official selection. Perhaps the most egregious statement was made by Senator Joseph Kennedy (R-LA) who offered the insulting stipulation that the nominee must be able to discern the difference between a law book and a clothing catalog.

Speaking from 25 years of experience as a Black woman in the legal profession, these reactions are disappointing, but not unexpected. I once had a client fire me the day before a trial in favor of a male attorney whom he presumed would have a better chance at winning (he did not). I once moderated a discussion on affirmative action wherein a young man insisted that white men were always the most qualified for competitive positions throughout society. Another time during a radio interview in which I defended the admissions criteria to competitive state universities, a caller questioned why having an all-Black football team was not considered diverse enough.

As frustrating as those anecdotes from my personal experience are, I can only imagine what it must have been like for the Black women that preceded me in the profession. Charlotte E. Ray (1850-1911) was the first Black woman to receive a law degree in this country in 1872 from Howard University. She finished school, passed the bar exam, but could not build a clientele to sustain her legal practice. It is unclear that abolitionist, journalist, and educator Mary Ann Shadd Cary (1823-1893), the second Black woman to receive her law degree from Howard University in 1883 fared any better. Both of these women were alive when Chief Justice Robert B. Taney (1777-1864) issued the Dred Scott decision in 1857 that declared Black people had no rights that whites were bound to respect.

Pauli Murray (1910-1985) graduated at the top of her law school class at Howard University in 1944, but was denied the prestigious Julius Rosenwald Fellowship for graduate work at Harvard Law School because it was only available to male graduates. She coined the term “Jane Crow” to describe the dual obstacles of racism and sexism she encountered. Ironically, it was her scholarship that formed the basis of the arguments used by two future Supreme Court Justices, Thurgood Marshall (1908-1993) and Ruth Bader Ginsburg (1933-2020), in dismantling race and gender-based distinctions in the law.

The first Black women appointed to the federal bench by President Lyndon B. Johnson in 1966 was Constance Baker Motley (1921-2005). She had worked as a law clerk to future Associate Justice Marshall and had been a member of the NAACP Legal Defense and Educational Fund team of lawyers that litigated school desegregation and other forms of public discrimination. She would serve as the only Black woman on the federal bench until President Jimmy Carter increased the number to eight. Even if Senators Cruz, Kennedy, and Wicker were unaware of these historic figures, they were cognizant how their statements would resonate in a country that has become more deeply divided over the issue of race in the last ten years. The contention that affirmative action casts doubt on the accomplishments of potential recipients mischaracterizes how white women have benefitted more than members of every other historically marginalized racial or ethnic group.

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