At Least 3 Judges Being Eyed for Biden Pick To Replace Breyer on Supreme Court
WASHINGTON (AP) — President Joe Biden is eyeing at least three judges for an expected vacancy on the Supreme Court, each of whom would fulfill his campaign pledge to nominate the first Black woman to the nation’s highest court, according to aides and allies.
With Justice Stephen Breyer planning to retire, early discussions about a successor are focusing on U.S. Circuit Judge Ketanji Brown Jackson, U.S. District Judge J. Michelle Childs and California Supreme Court Justice Leondra Kruger, according to four people familiar with the matter who spoke on condition of anonymity to discuss White House deliberations. Jackson and Krueger have long been seen as possible nominees.
Since Biden took office in January 2021, he has installed five Black women on federal appeals courts, with three more nominations pending before the Senate. Another Supreme Court candidate could come from among that group, Biden aides and allies said. Almost all of the recent Supreme Court nominees have been federal appeals judges.
By the end of his first, Biden had won confirmation of 40 judges, the most since President Ronald Reagan. Of those, 80% are women and 53% are people of color, according to the White House.
Jackson, 51, was nominated by President Barack Obama to be a district court judge. Biden elevated her to the U.S. Court of Appeals for the District of Columbia Circuit. Early in her career, she was also a law clerk for Breyer.
Childs, a federal judge in South Carolina, has been nominated but not yet confirmed to serve on the same circuit court. She is a favorite among some high-profile lawmakers, including Rep. James Clyburn, D-S.C., and has received Republican support.
Kruger, a graduate of Harvard and Yale’s law school, was a Supreme Court clerk and has argued a dozen cases before the justices as a lawyer for the federal government.
Breyer, 83, will retire at the end of the summer, according to two sources who confirmed the news to The Associated Press on Wednesday. They spoke on condition of anonymity so as not to preempt Breyer’s formal announcement.
“Every justice should have an opportunity to decide what he or she is going to do and announce it on their own,” Biden said. “There has been no announcement from Justice Breyer. Let him make whatever statement he’s going to make and I’ll be happy to talk about it later.”
The Senate can confirm a successor before there is a formal vacancy.
When Biden was running for the White House, he said that if he had the chance to nominate someone to the court, he would make history by choosing a Black woman.
“As president, I’d be honored, honored to appoint the first African American woman. Because it should look like the country. It’s long past time,” Biden said in February 2020 shortly before South Carolina’s presidential primary.
The White House has reiterated Biden’s campaign pledge since his election.
Adding a Black woman to the court would mean a series of firsts — four female justices and two Black justices serving at the same time on the nine-member court. Justice Clarence Thomas is the court’s only Black justice and just the second ever, after Thurgood Marshall.
Biden now has the chance to show Black voters increasingly frustrated with a president they helped to elect that he is serious about their concerns, particularly after he has been unable to push through voting rights legislation.
At the same time, Breyer’s replacement by another liberal justice would not change the ideological makeup of the court. Conservatives outnumber liberals by 6-3, and Donald Trump’s three nominees made an already conservative court even more conservative.
With the larger push to diversify the judiciary — Trump largely appointed white men during his time in office — Biden’s team has consulted with the NAACP Legal Defense Fund, Black caucus members, Clyburn, and influential Democratic lawyers.
Even with a narrowed field and the court’s majority not to be altered, there’s no guarantee a nominee will sail through the Senate.
Senate Majority Leader Chuck Schumer, D-N.Y., said Wednesday that Biden’s nominee “will receive a prompt hearing in the Senate Judiciary Committee and will be considered and confirmed by the full United States Senate with all deliberate speed.”
But Republicans in particular remain upset about Justice Brett Kavanaugh’s contentious 2018 hearing. Still, Democrats have the 50 votes plus a tiebreaker in Vice President Kamala Harris that they need to confirm a nominee.
White House press secretary Jen Psaki dismissed speculation that Biden might nominate Harris and said the administration would not comment until Breyer made his retirement official. She said Biden has been clear he plans to run for reelection in 2024 with Harris on the ticket.
Republicans who changed the Senate rules during the Trump-era to allow simple majority confirmation of Supreme Court nominees appeared resigned to the outcome. Sen. Lindsey Graham of South Carolina, the top Republican on the Senate Judiciary Committee said in a statement: “If all Democrats hang together — which I expect they will — they have the power to replace Justice Breyer in 2022 without one Republican vote in support.”
Nonetheless, Democrats have also been unable to get all its members on board for Biden’s social and environmental spending agenda or to move forward with a voting rights bill.
Biden is uniquely aware of the challenges that come with a confirmation. As a senator, he served as chairman of the Judiciary Committee, overseeing six Supreme Court confirmation hearings from 1987 to 1995, including Breyer’s.
And one person who will be central to Biden’s process is chief of staff Ron Klain, a former Supreme Court law clerk and chief counsel on the Senate Judiciary Committee. While serving as an associate White House counsel for President Bill Clinton in 1993, Klain was summoned to breakfast with Justice Byron White, for whom he had clerked, only to be surprised with a resignation letter for Clinton.
Two other Black women Biden appointed to federal appeals courts are also seen as contenders: Holly Thomas, a longtime civil rights lawyer he named to the U.S. Court of Appeals for the 9th Circuit and Candace Jackson-Akiwumi, a former public defender he named to the U.S. Court of Appeals for the 7th Circuit.
Biden could also choose someone from outside the judiciary, though that seems less likely. One contender would be the head of the NAACP Legal Defense and Educational Fund, Sherrilyn Ifill, 59. She has headed the fund since 2013 and has announced she is stepping down in the spring.
The court has had three women on it for more than a decade, since 2010, when Obama named Justice Elena Kagan to the court to replace the retiring John Paul Stevens. Kagan joined Obama’s other nominee, Justice Sonia Sotomayor, the court’s first Latina justice, and Justice Ruth Bader Ginsburg. When Ginsburg died in September 2020, Trump announced his choice of Amy Coney Barrett eight days later.
Barrett was confirmed exactly a month after that. Democrats sharply criticized that timeline then, arguing that most confirmations had taken much longer and that Republicans were trying to jam the nomination through in case Trump lost reelection. But now that they hold the presidency and the Senate, though just barely, Democrats are considering a similarly swift schedule, even if Breyer does not officially step down until the summer.