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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.”