Joe Biden will have a monumental opportunity to put his imprint on the Supreme Court when he names a replacement for Associate Justice Stephen Breyer, who announced his retirement on Wednesday.
In truth, whoever Biden names will not alter the court’s ideological tilt. At the end of the day, there will still be six conservatives and three liberals on the high court.
But depending on who the president chooses, the arguments are almost certain to veer hard left on the liberal side of the court. Biden will be under enormous pressure from the radicals to choose one of their own — someone who places their idea of “justice” and “equity” above the Constitution and the law.
The potential nominee will be a woman — a woman of color. Biden promised to name the first black woman to the Supreme Court and, since this might be his only chance, expect him to fulfill that campaign promise.
Biden loves to name “the first so-and-so,” as in the first woman vice president, the first Hispanic this or that, the first black something or other. It’s predictable and boring, but Biden has to feed his base.
But we might also expect Biden to name some female of color not associated with a big law practice or prominent litigator. Perhaps Biden will name a public defender?
Biden has already elevated Judge Ketanji Brown Jackson once, appointing her last year to the US Court of Appeals for the District of Columbia, which is considered the second-most powerful federal court in the country. Previously, the 51-year-old judge served on the federal district court in DC. Because of that appellate appointment, she’s already been through a vetting process that included an interview with the President himself. Fittingly, she clerked for Breyer and holds degrees from Harvard and Harvard Law School. She also served as an assistant federal public defender, making her a prime example of the Biden’s White House focus on appointing judges with backgrounds that are outside the typical prosecutor and Big Law box.
Biden’s job is complicated by the upcoming mid-term elections. He simply can’t afford a long, drawn-out approval process. The fact that Judge Brown-Jackson has already been vetted for the federal court makes her number one with a bullet on the list.
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Also prominently mentioned is a young California judge.
California Supreme Court Justice Leondra Kruger, now 45, was the youngest person to be appointed to the California Supreme Court when then-Gov. Jerry Brown nominated her in 2014.
Kruger is intimately familiar with the Supreme Court having worked as a clerk for the late Justice John Paul Stevens and served as acting deputy solicitor general in the Obama administration. While in the Solicitor General’s office, she argued 12 cases in front of the Supreme Court representing the government. At the Justice Department, she also earned the Attorney General’s Award for Exceptional Service, the department’s highest award for employee performance, in 2013 and 2014.
U.S. District Court Judge J. Michelle Childs of South Carolina has the advantage of having close Biden ally Rep. James Clyburn as a booster. She is one of those “historically underrepresented” candidates that Democrats are fond of choosing. She may not be much of a judge, but she checks a lot of boxes: female, black, humble origins, attended a public university, and relatively “uncredentialed.”
Two other judges have been mentioned as possible nominees.
Circuit Judge Eunice Lee, a former New York public defender whom Biden nominated to the Second Circuit on the recommendation of Senate Majority Leader Chuck Schumer.
Sherrilyn Ifill, a civil rights attorney who recently announced plans to step down from her role as President and Director-Counsel of the NAACP Legal Defense and Educational Fund.
There’s nothing wrong with nominating a justice who doesn’t have a long pedigree in working on big cases. The less experience a nominee has in the law, the more likely they are to have their own opinions.
But do any or all of these women actually believe in the Constitution? Or do they see it as something to be gotten around, an impediment to social justice and equity?
It would be nice if, at a minimum, Biden would name a judge who doesn’t see the Constitution as an obstacle.
