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Fair Courts Update: Biden Promises Historic Nomination of Black Woman to U.S. Supreme Court

This Fair Courts Update highlights Biden’s promise to nominate a Black woman to SCOTUS, advocacy for a Supreme Court Code of Conduct, redistricting cases in state courts, and more.

Last Updated: February 11, 2022
Published: March 15, 2022

Biden Prom­ises Historic Nomin­a­tion of Black Woman to U.S. Supreme Court

Follow­ing Justice Brey­er’s announce­ment of his retire­ment on Janu­ary 27, Pres­id­ent Joe Biden has reit­er­ated his 2020 campaign prom­ise to nomin­ate the first Black woman to the Supreme Court.

Although a full list of poten­tial nomin­ees has not been made public, a repor­ted short­l­ist of thir­teen candid­ates includes Black women state supreme court justices, federal court judges, and civil rights attor­neys.

On Febru­ary 10, 14 Black women lawmakers wrote a letter call­ing on Biden to choose a nominee “with a strong track record of advan­cing civil and consti­tu­tion­ally protec­ted rights and whose work has shown dedic­a­tion to affirm­ing the rights of our coun­try’s most margin­al­ized communit­ies.”

Biden has prom­ised to name his nominee by the end of Febru­ary, and Sen. Chuck Schu­mer has announced plans for a quick confirm­a­tion process, similar to that of Justice Amy Coney Barrett, who was confirmed 30 days after her nomin­a­tion.

Legal Schol­ars Call for Adop­tion of SCOTUS Code of Conduct

On Febru­ary 3, twenty-five prom­in­ent legal schol­ars sent a letter to Chief Justice John Roberts urging him to adopt a code of conduct for the justices. Such a code, the schol­ars wrote, would “trans­par­ently address poten­tial conflicts and other issues in a way that builds public trust in the insti­tu­tion.”

The schol­ars’ letter coin­cides with reports about poten­tial conflicts of interest involving sitting justices, most recently Justice Neil Gorsuch, who gave a closed-door speech at a two-day event sponsored by the conser­vat­ive Feder­al­ist Soci­ety. The event, which was other­wise open to the press, also featured former Vice Pres­id­ent Mike Pence and included a panel titled “The End of Roe v. Wade?” Justice Clar­ence Thomas has also recently faced criti­cism for fail­ing to recuse himself from cases related to the polit­ical work of his wife, Ginni Thomas, who is an outspoken conser­vat­ive activ­ist and lobby­ist.

On Febru­ary 9, while speak­ing at a publicly-access­ible virtual lecture for the NYU School of Law, Justice Sonia Soto­mayor commen­ted that “the mantel of judi­cial philo­sophy has become tightly inter­woven with polit­ical parties” and said that judges should be “sens­it­ive” to public percep­tions of their rela­tion­ships with public offi­cials to avoid the appear­ance of undue influ­ence.

A Dozen Redis­trict­ing Cases Pending in State Courts

With the decen­nial redis­trict­ing process under­way, state courts across the coun­try are hear­ing redis­trict­ing disputes, includ­ing in some key battle­ground states, because of a 2019 U.S. Supreme Court decision dictat­ing that federal courts cannot hear partisan gerry­man­der­ing claims.

Some state courts have struck down newly drawn maps. The North Caro­lina Supreme Court recently ruled that the state’s new congres­sional and legis­lat­ive maps were partisan gerry­manders that viol­ated the state consti­tu­tion. The Ohio Supreme Court also struck down the state’s new congres­sional map and twice rejec­ted the legis­lat­ive maps as partisan gerry­manders.

Other state courts have rejec­ted chal­lenges to maps. The Michigan Supreme Court upheld the legal­ity of maps drawn by the state’s redis­trict­ing commis­sion, reject­ing claims that the new maps were racially discrim­in­at­ory. The New Jersey Supreme Court also rejec­ted a chal­lenge to the state’s new congres­sional maps as a partisan gerry­mander.

On Febru­ary 2, the Pennsylvania Supreme Court announced that it would take control of the dispute involving the state’s new congres­sional map from a lower court judge that was hear­ing the case. A chal­lenge to New York’s new congres­sional maps was also filed in state court on Febru­ary 4.

Illinois, Pennsylvania Courts Consider Ethics Reforms

In Illinois and Pennsylvania, state courts are imple­ment­ing updated ethics regu­la­tions for judges.

The Illinois Supreme Court is currently consid­er­ing a proposal that would update the state’s judi­cial ethics rules to prohibit judges from using the inter­net to find inform­a­tion about cases or litig­ants before them, and from shar­ing articles or other content on social media that could create the appear­ance of bias. The updated rules would also require judges to disclose more detailed inform­a­tion about their finan­cial assets, but would not make those finan­cial disclos­ures more access­ible to the public.

The Pennsylvania Supreme Court also recently created a new judi­cial ethics body. The Judi­cial Ethics Advis­ory Board will replace the state’s exist­ing judi­cial ethics system made up of two separ­ate commit­tees, and will issue advis­ory opin­ions and guid­ance to judges and judi­cial candid­ates. Chief Justice Max Baer said, “the new, single advis­ory board struc­ture will afford signi­fic­ant improve­ment and provide consist­ency and trans­par­ency.”