When President Biden promised during his campaign to nominate the first African American female to the US Supreme Court, the hue and cry from the far right was predictable. Senator Mitch McConnell who engineered a blockade of the last nominee from a Democratic president, Merrick Garland, warned Biden against basing his selection on the demands of the “radical left.” McConnell had no problems with Trump’s decision to select Supreme Court nominees (and nominees to other federal judgeships) based on their approval by the Federalist Society, the Heritage Foundation, and other far right policy groups.
Senator Susan Collins criticized President Biden’s stated commitment as being “clumsy.” She accused President Biden of politicizing the nomination process. Collins made a clumsy attempt to distinguish President Reagan’s pledge to appoint the first female justice to the Supreme Court and President Trump’s vow to appoint a woman to replace Justice Ruth Bader Ginsburg.
Apparently, she is not a student of her party’s history. One top Reagan advisor told the president that delivering on his pledge to nominate a woman to the highest court would be “a good political move” and the nomination would strengthen the Republican base among women. As governor of California, he had a weak record of appointing women to the bench. He also opposed the Equal Rights Amendment.Similarly, Trump announced during a rally in North Carolina on September 19, 2020, following Justice Ginsberg’s death, that he would be submitting a female nominee for the vacancy the following week. Senator Graham of South Carolina has voiced public support for Michelle Childs, one of the women being considered for the nomination. However, his insistence that her appointment “would not be affirmative action” because “affirmative action is picking somebody not as well qualified for past wrongs” is just plain silly. His characterization of the purpose of affirmative action underscores the deep aversion many white people have with accepting that people of color can and do achieve high levels of success based on merit.
It is being widely reported that the three front-runners for Breyer’s seat include Judge Ketanji Brown Jackson of the US Court of Appeals for the DC Circuit, California Supreme Court Justice Leondra Kruger, and US District Judge J. Michelle Childs, who serves in South Carolina and was nominated earlier this year by Biden for an open seat on the powerful DC Circuit, historically a springboard to the Supreme Court.
Judge Ketanji Brown Jackson
Judge Jackson is a graduate of Harvard University and Harvard Law School. She clerked for Justice Stephen G. Breyer. In perhaps her most famous decision, she ruled in 2019 that Donald F. McGahn II, the former White House counsel, had to obey a congressional subpoena seeking his testimony about Mr. Trump’s actions during the Russia investigation. “Presidents are not kings,” she wrote, adding that current and former White House officials owe their allegiance to the Constitution. “They do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”
That she just underwent a Senate confirmation is seen as another mark in her favor. The Senate confirmed her to the appeals court in June by a vote of 53 to 44. All 50 Democratic caucus members voted for her, as did three Republicans: Susan Collins of Maine, Lindsey Graham of South Carolina, and Lisa Murkowski of Alaska.
Jackson and her husband Patrick, a doctor, have two daughters. Jackson said her family values include respecting everyone and putting forth your best effort in everything you do. “In our family, we have a mantra is: ‘do what you need to do before what you want to do.’”
Justice Leondra Kruger
Kruger is currently a justice on the California Supreme Court. She is a graduate of Harvard University and Yale’s law school. She clerked for US Supreme Court Justice John Paul Stevens and served in the Office of Solicitor General.
While in that office during the Obama administration, she argued a dozen cases on behalf of the federal government. She also worked in the US Department of Justice and taught as an assistant professor at the University of Chicago Law School.
In 2014, when she was just 38, then-California Governor Jerry Brown, a Democrat, nominated Kruger to the state Supreme Court, where she has served since January 2015. During her tenure on California’s high court, Kruger has garnered a reputation as a prudent, meticulous judge who evaluates each side of an argument before rendering a decision.
US District Judge J. Michelle Childs
Childs, whom Biden nominated to the US Court of Appeals for the DC Circuit this month, is the first candidate the White House has publicly confirmed. She had been scheduled to appear before the Senate Judiciary Committee to answer questions on her nomination on February 1. That hearing has been postponed because she is on a list of Biden’s potential picks to serve on the Supreme Court.
Childs attended the University of South Florida and the University of South Carolina School of Law. In 1992, she became the first female law partner at a prominent firm in South Carolina. She later served as a state judge before President Barack Obama nominated her in 2010 to be a district court judge.
In one of her more high-profile cases, Judge Childs struck down a South Carolina rule during the 2020 election that would have required a witness to sign absentee ballots, a move intended to make it more onerous to vote, particularly during the coronavirus pandemic.
Other Potential Nominees
Biden is considering more than a dozen candidates for the seat. The White House is also considering Sherrilyn Ifill, who is stepping down as president of the NAACP Legal Defense and Educational Fund, and North Carolina Supreme Court Justice Anita Earls.
Another potential nominee is Judge Wilhelmina “Mimi” Wright, who serves on the US District Court for the District of Minnesota. In 2016 she was confirmed to her district judgeship with the support of some Republicans still serving: Collins and Senators Joni Ernst of Iowa and Shelley Moore Capito of West Virginia.
Judge Eunice Lee who serves on the Second Circuit Court of Appeals, Judge Candace Jackson-Akiwumi who serves on the Seventh Circuit Court of Appeals, Judge Holly A. Thomas who serves on the Ninth Circuit Court of Appeals and Federal Circuit Court Judge Tiffany P. Cunningham, who became the first Black judge on the federal circuit are also contenders.
Rounding out the potential candidates at this point are Arianna J. Freeman, Melissa Murray, and Nancy G. Abudu. Freeman is a Philadelphia public defender who was nominated earlier this month to be a circuit judge. Murry is a New York University law professor who wrote the first casebook covering the field of reproductive rights and justice. Abudu is a voting rights expert and the head of strategic litigation for the Southern Poverty Law Center. President Biden nominated Abudu earlier this month to be a circuit judge for the 11th Circuit.
No matter who President Biden nominates for the Supreme Court; the work of the Presidential Commission on the Supreme Court of the United States must move forward with alacrity. On April 9, 2021, President Biden issued Executive Order 14023 forming the Commission to examine issues including the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.
Any Biden nominee to replace Breyer, 83, who was appointed to the court by President Clinton in 1994, would not tip the court’s ideological composition—six Republican-appointed justices outnumber the three Democrat-nominated jurists. It is also worth noting that women (two of whom would be women of color) will comprise the “liberal wing” of the Supreme Court. This is significant given the link between the court’s work on issues that affect women in general and particularly women of color, such as voting rights, reproductive rights, maternal health, environmental protection, and affirmative action—an especially relevant issue since the Supreme Court will hear a pair of cases regarding the subject in the next term.
—Rosalyn Coates, Chair, Racial Equity Task Force