Who is on Biden’s shortlist to replace retiring Justice Breyer?

Judge Ketanji Brown Jackson is considered a potential candidate for President Joe Biden’s Supreme Court shortlist. | Bill O’Leary/Washington Post/Getty Images

Biden promised to nominate a Black woman to the Supreme Court. Now he has his chance.

With Justice Stephen Breyer’s reported retirement opening a seat on the Supreme Court, President Joe Biden has a chance to fulfill a campaign promise to name a Black woman to the Court for the first time.

Only two African Americans, Justices Thurgood Marshall and Clarence Thomas, have served on the nation’s highest court, and only one woman of color has been a justice — Justice Sonia Sotomayor, who is Latina. And Black women aren’t just unrepresented on the Supreme Court, they are also massively underrepresented on the federal bench. And they were even more so before Biden took office.

Nearly all recent justices previously served on a federal appeals court before getting promoted to the high court. Of the nine current justices, only Justice Elena Kagan did not. But, when Biden took office, only five of the nearly 300 sitting federal appellate judges were Black women, according to the Federal Judicial Center. Biden has doubled that number, placing five more Black women on the federal appellate bench.

Presidents typically prefer to name justices who are, at most, in their early- to mid-50s so that their nominee will still have a long career ahead of them. But the youngest Black woman who served as a federal appellate judge when Biden took office, Judge Johnnie B. Rawlinson of the United States Court of Appeals for the Ninth Circuit, is in her late 60s. So, if Biden follows the common practice of choosing a sitting federal appellate judge as his nominee, he will almost certainly choose someone he’s already elevated to an appeals court.

Indeed, one of Biden’s appointees, Judge Ketanji Brown Jackson of the United States Court of Appeals for the District of Columbia Circuit, is widely considered to be one of two frontrunners for the Supreme Court vacancy.

But Biden could also take a page from President Ronald Reagan’s playbook.

Reagan promised to nominate the first woman to the Supreme Court, but when a vacancy opened up early in Reagan’s presidency, women of all racial backgrounds were underrepresented on the federal bench, and conservative women who shared Reagan’s political views were especially underrepresented.

So Reagan turned to state courts, appointing a mid-level Arizona appeals court judge named Sandra Day O’Connor to the Supreme Court. If Biden wishes to follow this model, he could pick someone like Justice Leondra Kruger of the California Supreme Court, who is considered to be another frontrunner for Breyer’s seat.

Biden could also potentially look to other high-ranking government officials or even prominent lawyers and legal scholars to fill the vacant seat. The modern practice of almost exclusively placing sitting judges on the Supreme Court is fairly new. President Franklin Roosevelt named two senators (Hugo Black and Jimmy Byrnes), two US attorneys general (Robert Jackson and Frank Murphy), one US solicitor general (Stanley Reed), one chair of a federal agency (William Douglas), and one law professor (Felix Frankfurter) to the Court.

The following list of potential Biden nominees was compiled from multiple sources. It includes women who’ve been mentioned in the press as potential Biden nominees, women who’ve been pushed by interest groups and prominent Democrats, and women who President Barack Obama considered naming to the Court.

In compiling this list, I made some judgment calls about who to exclude. An Axios article from 2020, for example, listed six potential candidates who were being discussed by unnamed “progressive advocates.” But two of the names on that list are academics who do not have a law degree. It seems unlikely that Biden will choose a non-lawyer to serve at the apex of the American judiciary.

I also excluded potential nominees who are over the age of 55.

This list also assumes that Biden will keep his promise to name a Black woman to the Supreme Court. If he chooses to expand his list, that would open the door to a wide range of other highly qualified candidates, including sitting federal appellate Judges Sri Srinivasan, Paul Watford, and Michelle Friedland, and former California Supreme Court Justice Mariano-Florentino Cuéllar.

But there is no shortage of relatively young, legally trained Black women who are qualified to serve on the Supreme Court, and who are likely to share the Democratic Party’s broad approach to the law, even if not all of these women already serve on the federal bench.

Here are the top contenders.

The frontrunners

Virtually every list of potential Biden nominees includes two names: federal appellate Judge Ketanji Brown Jackson and California Supreme Court Justice Leondra Kruger. Both women are fairly young (Jackson is 51; Kruger is 45) and both women have significant judicial experience. Jackson was appointed to a federal trial judgeship by President Barack Obama in 2013, and was recently confirmed to the powerful United States Court of Appeals in the District of Columbia circuit. Kruger joined California’s highest court in 2015.

Both women also clerked on the Supreme Court — Jackson clerked for Breyer and Kruger for Justice John Paul Stevens — an elite credential that can elevate a young lawyer to the upper echelons of the legal profession very early in their career. Six of the Court’s current members clerked for a justice shortly after graduating from law school.

Judge Ketanji Brown Jackson

Jackson will likely be a favorite of criminal justice reformers if appointed to the Supreme Court. A former public defender, Jackson served as vice chair of the United States Sentencing Commission from 2010 to 2014, a period in which the commission cut sentences significantly for many federal drug offenders.

The commission retroactively reduced sentences for many crack cocaine offenses in 2011, allowing 12,000 inmates to seek reduced sentences and making an estimated 1,800 inmates eligible for immediate release. And it cut sentences for most federal drug offenders during Jackson’s last year on the commission.

Though Jackson spent the bulk of her judicial career as a district judge (the federal judiciary has three levels of judges with lifetime appointments: district judges who try most cases, circuit or appellate judges who hear appeals from district court decisions, and the Supreme Court), she served on the United States District Court for the District of Columbia, which hears an unusually large number of lawsuits alleging executive overreach.

Thus, in American Federation of Government Employees v. Trump (2018), Jackson struck down several provisions of three executive orders signed by President Trump which sought to limit the ability of federal workers’ unions to collectively bargain. And in Committee on the Judiciary v. McGahn (2019), Jackson held that former Trump White House counsel Donald McGahn could be compelled to testify before a House committee — although Jackson also explained that McGahn might be able to refuse to answer some questions “on the basis of a valid privilege.”

Both of these decisions were later reversed by the DC Circuit Court — though in both cases the appeals court panel that reversed Jackson had a conservative majority.

As an appellate judge, Jackson also sat on a panel that held that the US House investigation into the January 6 attack could obtain certain White House records from the Trump administration, despite Trump’s objections. That decision was upheld by the Supreme Court earlier this month.

Justice Leondra Kruger

Before her elevation to the California Supreme Court, Kruger was a top Justice Department lawyer, at one point serving as acting principal deputy solicitor general — the second-highest-ranking Supreme Court advocate in the federal government. Justice Kagan, herself a former solicitor general, reportedly described Kruger as “one of the best advocates in the Department of Justice.”

With her appointment to the bench at the young age of 38, Kruger joined a court that was still dominated by Republican appointees — justices chosen by Republican Govs. Pete Wilson and Arnold Schwarzenegger held four of the state supreme court’s seven seats when Kruger first donned her black robe, though the Court now has a solid Democratic majority.

Kruger garnered a reputation as a moderate incrementalist. In one particularly notable opinion, People v. Buza (2018), Kruger wrote her court’s 4-3 decision rejecting a challenge to California’s Proposition 69, which required police to collect DNA samples from all individuals arrested for a felony offense. Her opinion was joined by three Republican appointees, while three Democrats dissented.

Yet Kruger’s Buza opinion is more of a tribute to her cautious approach to judging than it is to any kind of ideological conservatism. Buza did not so much uphold Prop 69 as hold that the defendant was the wrong person to bring a challenge to the law.

Kruger based much of her opinion on the US Supreme Court’s decision in Maryland v. King (2013), which held that “when officers make an arrest supported by probable cause to hold for a serious offense,” those officers may take “a cheek swab of the arrestee’s DNA.” The defendant in Buza “was validly arrested on ‘probable cause to hold for a serious offense’” —that defendant was arrested on a felony arson charge and was ultimately convicted.

In a 2018 interview with the Los Angeles Times, Kruger explained that her approach to the law “reflects the fact that we operate in a system of precedent.” She said that she aims “to perform my job in a way that enhances the predictability and stability of the law and public confidence and trust in the work of the courts.”

While this desire to preserve existing law may make Kruger an awkward US Supreme Court nominee if she were likely to become the Court’s swing vote, the Biden camp may not see this as a problem for a nomination to the current Court, with its conservative supermajority.

Realistically, whoever Biden appoints to the Supreme Court is unlikely to reshape the law in a way that will please Democrats — Democrats don’t have the votes to do anything other than play defense on the high court. But someone like Kruger might be able to convince her conservative colleagues to embrace caution, and to be more reluctant to toss out longstanding precedents.

The new class

Though few Black women currently serve on the federal appellate bench, President Biden’s judicial nominees suggest that he hopes to remedy this imbalance. In addition to Jackson, Biden’s appointed four other Black women to federal appellate judgeships, two of whom are plausible Supreme Court contenders.

Judge Candace Jackson-Akiwumi — whom Biden appointed to the Seventh Circuit, which oversees federal litigation in Illinois, Indiana, and Wisconsin — is a Yale law graduate who clerked for a federal circuit judge before entering practice. Although she was a partner at a large law firm immediately before her elevation to the bench, she spent 10 years as a public defender.

Similarly, Judge Eunice Lee, a Biden nominee to the Second Circuit, also graduated from Yale Law School and clerked for a federal appellate judge (Lee clerked for Judge Eric Clay of the Sixth Circuit, who I also clerked for). She has more than two decades of experience arguing appeals for indigent criminal defendants.

There are a few other candidates who appear less likely picks — at least for the current opening.

Tiffany Cunningham, who sits on the Federal Circuit, a highly specialized court that primarily deals with patent law, is unlikely to ever be nominated to the Supreme Court. Judge Holly Thomas, who was very recently confirmed to the Ninth Circuit, is a former civil rights attorney, Yale Law School graduate, and former Ninth Circuit law clerk. Because Thomas has literally only been a judge for less than a week, she is an unlikely contender for the Breyer seat. But she could be a very strong contender for a future vacancy if it arises under a Democratic president and a Democratic Senate.

Jackson-Akiwumi and Lee’s primary liabilities are that they have no judicial experience prior to being nominated by Biden. So they are less likely to receive a Supreme Court nod than experienced jurists like Jackson or Kruger. Nevertheless, both women are fairly young — Lee is in her early 50s and Jackson-Akiwumi in her early 40s — so they could also plausibly be in the mix for a future vacancy even if they are not nominated to replace Breyer.

The long shots

In addition to the names mentioned above, there are a handful of other potential candidates. These include prominent academics, civil rights lawyers, and some lesser-known judges with powerful benefactors.

The most notable example of the latter category is Judge J. Michelle Childs, a federal district judge in South Carolina. Appointed to the bench by President Obama in 2009, Childs was the first Black woman to become a partner in one of South Carolina’s major law firms, according to the New York Times. She also held various positions in state government. Biden recently nominated her to a seat on the DC Circuit.

Childs’s best shot at a Supreme Court nomination stems from the fact that she has a powerful advocate. Rep. Jim Clyburn, a senior House Democrat who played a significant role in helping Biden win the presidential primary in South Carolina that reinvigorated his 2020 campaign, reportedly floated Childs as a potential Supreme Court justice.

The same New York Times article that reported Clyburn’s interest in Childs also mentioned two other names that “have caught the eye of lawmakers” — Danielle Holley-Walker, the young dean of Howard University’s law school, and Leslie Abrams Gardner, a federal district judge who is also the younger sister of Georgia politician and voting rights activist Stacey Abrams.

Additionally, the left-leaning group Demand Justice compiled its own “Supreme Court shortlist” of potential nominees. Their list includes a number of Black women who are young enough to be plausible nominees, including Oregon Supreme Court Justice Adrienne Nelson, civil rights lawyer Janai Nelson, NYU law professor Melissa Murray, and Kristen Clarke, who currently leads the Justice Department’s Civil Rights Division.

It seems unlikely that the nominee will be any of these candidates. Jackson and Kruger are the frontrunners not simply because they are well qualified for the job, but also because they are well known and trusted by the sort of people who typically shape Supreme Court nominations. They also have the kinds of resumes that one typically finds in a Supreme Court nominee.

But fairly young figures such as Holley-Walker, Murray, or Clarke could easily see their stock rise in the future — especially if Biden places any of them on a lower appellate court.

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