Stephen Breyer’s retirement from the Supreme Court sets up President Biden to make history by appointing the first Black female to America’s highest court. On the campaign trail in 2020, Biden vowed to nominate a Black woman if he were elected and a court vacancy occurred.
“I’ll appoint the first black woman to the Court, it’s required that they have representation now, it’s long over due.” pic.twitter.com/VzjhT4b5Va
— Brandon Richards (@BrandonRichards) January 26, 2022
White House press secretary Jen Psaki confirmed this afternoon that the administration will stick to that pledge. Since Biden took office in January 2020—just four months after Ruth Bader Ginsburg’s death allowed President Trump to move the court rightward, toward a 6-to-3 split—progressives have been howling for the 83-year-old Breyer (a Clinton appointment) to retire as a way of ensuring that Democrats don’t have RBG déjà vu.
Last summer, Breyer frustrated them by saying he couldn’t commit to retiring anytime soon because there were “a lot of blurred things there” and “many considerations,” throwing into question who would be sitting in the Oval Office when he did. Breyer seems to have pondered this longer, and concluded in retrospect that now is actually the best time.
Biden can’t shift the court back to the left, but it does give him a chance to reset the political narrative before the 2022 midterms arrive, perhaps repairing some of the potential damage caused by months of slip-ups in Congress (like the Build Back Better and voting-rights bills being punted into 2022), on top of an ongoing pandemic recovery that’s wearing the public thin and a general economic malaise.
On paper, Biden has the votes he needs to make a first-ever judicial appointment that could excite the party’s base. A shortlist of candidates his White House is likely considering is already circulating. These are the three names widely believed to be on top:
- Ketanji Brown Jackson. A D.C. Circuit judge with a Harvard law degree who clerked for Breyer himself. Biden already picked Jackson once, for a seat on the U.S. Court of Appeals for the D.C. Circuit last year. This means she was vetted very recently. Also, that particular court is generally considered to be America’s second most important after SCOTUS, since Congress and the executive branch largely fall under its jurisdiction. In that capacity, she’s already gotten notoriety for ordering the Trump White House documents to be disclosed to the House’s January 6 committee—a decision the Supreme Court let stand earlier this month, despite a fight by Trump.
- Leondra Kruger. A fairly young (as in, 45 years old) justice in California’s Supreme Court, Kruger also has familiarity with the U.S. Supreme Court beyond her years. She clerked for Justice John Paul Stevens, then, as acting deputy solicitor general under Obama, argued 12 different Supreme Court cases for the U.S. government. Her tenure on the California bench—which she assumed at 38, the youngest-ever in the state—has been praised, but experts note she’s never really received a deep vetting.
- J. Michelle Childs. A South Carolina District Court judge who’s awaiting confirmation right now, after a Biden nod, for a seat on the U.S. Court of Appeals for the D.C. Circuit, where she’d join Ketanji Brown Jackson. Childs is an outlier as far as her legal education: A graduate of the University of South Carolina School of Law, she doesn’t boast the Ivy League background that eight of the nine current justices share. But that might give her a leg-up—the Biden White House has said it wants to appoint judges from non-elite backgrounds. Her professional career includes working her way up from private practice in South Carolina, to deputy director of the state’s labor department, to a spot on its Workers’ Compensation Commission, then to the South Carolina Fifth Judicial Circuit Court, and finally to the U.S. District Court for the District of South Carolina.
Other women on the list include these four contenders:
- Sherrilyn Ifill. The current president of the NAACP Legal Defense and Educational Fund, who does double duty as its director-counsel. In November, she announced plans to retire in the spring of 2022.
- Candace Jackson-Akiwumi. A Seventh Circuit judge who cut her teeth in the Chicago public defender’s office. Of note, Dick Durbin, Illinois Senate Judiciary chair, is a big Jackson-Akiwumi backer.
- Eunice Lee. A current Second Circuit Judge and former New York public defender. Her nomination would likely get the backing of Senate Majority Leader Chuck Schumer.
- Wilhelmina Wright. A well-regarded judge on Minnesota’s federal district court. Her nomination would be applauded by Senator Amy Klobuchar, a Judiciary Committee member who hails from the Gopher State.