When Justice Stephen Breyer officially ends his service on the U.S. Supreme Court at the end of June, there will undoubtedly be a nominee already confirmed by the U.S. Senate and ready to step in to replace him.
Who will that nominee be? President Biden has promised to nominate a Black woman for the honor of serving as the 115th Supreme Court justice in the court’s history. We also know that he is currently reviewing the records of potential nominees and has most recently stated he has done a “deep dive” into four possible selections, although he didn’t indicate what names he might be considering.
Two other factors come into play whenever Supreme Court candidates are discussed these days: (1) the political makeup of the Senate and how that might affect the confirmation vote; and (2) the age of the nominee. With all other factors being equal with regard to qualifications, presidents from both parties tend to favor younger nominees who can serve longer.
A majority of the Senate must vote to confirm. The Senate is evenly divided at the moment, and the president says he is looking to win some Republican votes for whoever his nominee turns out to be.
“I’m not looking to make an ideological choice here,” NBC News reported the president as saying. “I’m looking for someone to replace Breyer, with the same kind of capacity Judge Breyer had.”
Even before Breyer’s retirement was announced, potential names for his replacement had been floated and discussed. Although the president mentioned he is currently looking at four possible candidates, the conventional wisdom – and reporting – has focused on three current judges, all African American women.
Judge Ketanji Brown Jackson
Jackson, age 51, currently serves as a circuit judge on the U.S. Court of Appeals for the District of Columbia, to which she was appointed by President Biden last year. From 2013 to 2021 she was a district judge for the U.S. District Court for the District of Columbia. She also served on the U.S. Sentencing Commission from 2010 to 2014.
Judge Jackson attended Harvard University for her undergraduate degree and received her law degree from Harvard Law School. She later clerked for Justice Breyer, the man she would be replacing.
Justice Leondra Reid Kruger
Kruger, age 45, is currently a justice on the California Supreme Court. She received her undergraduate degree from Harvard and her law degree from Yale Law School. She clerked at the Supreme Court for former Justice John Paul Stevens and worked as the Principal Deputy Solicitor General of the United States from 2010 to 2011, where she argued 12 cases at the Supreme Court on behalf of the United States. She was nominated for the California Supreme Court in 2014 by then-Governor Jerry Brown, and was sworn in on January 5, 2015.
If Kruger is the nominee, she will be questioned closely by senators about her 2012 argument at the Supreme Court on behalf of the United States in the religious hiring case, Hosanna-Tabor Evangelical Lutheran Church v. EEOC, in which she argued the First Amendment gave no protection for the hiring choices of a religious organization’s ministers. She failed to convince a single justice of the correctness of the U.S. government’s legal view in that case. Even liberal Justice Elena Kagan called Kruger’s argument, “amazing.” And she didn’t mean it in a good way.
Judge J. Michelle Childs
Childs, age 55, has served as a United States district judge on the U.S. District Court for the District of South Carolina since her appointment by President Obama in 2010. She received her B.A. from the University of South Florida and her law degree from the University of South Carolina. She also has an advanced law degree (LLM) from Duke University. She worked in private practice in South Carolina during the 1990s, and later in state government as the deputy director of the South Carolina Department of Labor, Licensing, and Regulation. She’s also served as a commissioner on the state Workers’ Compensation Commission.
She became a state judge in 2006 and served in that capacity until she was appointed to the federal district court. President Biden recently nominated her to become a circuit judge on the D.C. Circuit.
Childs may not have the Harvard/Yale legal pedigree of the other two, but she has been praised by two powerful South Carolina politicians – Rep. James E. Clyburn, a Democrat, and Sen. Lindsey Graham, a Republican. And Graham sits on the Senate Judiciary Committee that will soon hold confirmation hearings on whoever Biden selects.
A final word on the ultimate nominee: She will undoubtedly be a liberal, pro-abortion nominee who will fit neatly into the ideologically left-leaning side of the Supreme Court, although we don’t know officially what any of the abortion views of the three women highlighted in this article might be.
Of course, if the Supreme Court issues a decision in the upcoming Dobbs v. Jackson Women’s Health Organization decision that overturns Roe v. Wade, as pro-life observers cautiously predict could happen, the nominee’s views on abortion will be less important than we’re used to.
The president has promised to name his nominee by the end of February, although it could come sooner than that. After that, she will visit with senators wanting to meet and talk with her. Then the Senate Judiciary Committee will hold hearings and make their recommendation to the full Senate, which will then vote her nomination up or down.
We will keep you updated as the process unfolds.
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