The names to know as Biden mulls Breyer’s replacement
President Biden is set to have his first opportunity to appoint a judge to the Supreme Court after news broke that Justice Stephen Breyer is expected to announce his retirement in the coming days.
Biden vowed multiple times during the 2020 campaign to appoint the first Black woman to serve on the Supreme Court, and a number of Democrats quickly began applying pressure on the president to follow through on that pledge.
Breyer’s retirement, which had been a subject of speculation among Democrats, gives Biden and his party a chance to replace the 83-year-old jurist with a younger liberal justice and potentially diversify the bench.
The opportunity to appoint a Supreme Court justice is rare for presidents and can be a legacy-defining decision. Here’s a look at some of the names Biden is likely to consider nominating as Breyer’s replacement.
Ketanji Brown Jackson
Jackson is widely seen as the front-runner to be nominated as Breyer’s replacement.
The Senate confirmed the 51-year-old on a 53-44 vote last June vote to serve on the U.S. Court of Appeals for the D.C. Circuit, widely viewed as the second-most powerful court in the country. She received support from all 50 Democrats, plus GOP support from Sens. Susan Collins (Maine), Lisa Murkowski (Alaska) and Lindsey Graham (S.C.).
In a narrowly divided Senate where Democrats can afford no defections without Republican support, Jackson offers a potential nominee who has already been confirmed by moderates like Sen. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.).
Jackson filled the vacancy on the D.C. court created when Biden chose Merrick Garland to serve as attorney general.
She previously served as a federal district court judge in D.C., and was considered for the Supreme Court in 2016 when former President Obama was searching for a nominee following the death of Justice Antonin Scalia.
Kruger serves on the California Supreme Court, to which she was appointed by then-Gov. Jerry Brown (D) in 2014.
She worked as a clerk for the late Justice John Paul Stevens and later served in the Obama administration as an assistant to the solicitor general and acting principal deputy solicitor general. In those roles, she argued a dozen cases in front of the Supreme Court.
Her name was among those circulated by progressive groups in December 2020 when they urged Biden to name a Black woman as solicitor general, a position for which he ultimately chose Elizabeth Prelogar.
Kruger, who is 45, would be the youngest justice on the bench if nominated and confirmed.
J. Michelle Childs
Biden nominated Childs, 55, a federal district court judge in South Carolina, to the D.C. Circuit Court of Appeals just one month ago. Though her confirmation is still pending, her name is circulating among the top contenders for Breyer’s seat.
Her odds have been boosted, largely thanks to a powerful ally in Democratic leadership: Rep. James Clyburn (D-S.C.), the No. 3 House Democrat.
Clyburn had already been pushing Childs as a potential high court nominee, The New York Times reported last year, touting her blue-collar roots in a state that was key to Biden’s victory. Childs graduated from University of South Carolina’s law school, which Clyburn emphasized as an additional point of diversity to set her apart from the Ivy League-dominated legal elite.
“She is the kind of person who has the sort of experiences that would make her a good addition to the Supreme Court,” Clyburn told the Times.
But a Childs nomination would be a departure from Biden’s first-year records of elevating judicial nominees with backgrounds as public defenders and civil rights attorneys. Her early record as a white collar lawyer specializing in defending employers in workplace suits may provoke an outcry from progressives who have thus far applauded Biden’s judicial confirmation record.
Ifill is a prominent civil rights lawyer who has served as the president of the NAACP Legal Defense Fund for nearly a decade.
Ifill, 59, announced in November she would step down from her role in the spring of 2022. She was included on Time magazine’s 100 Most Influential People list last year.
Through her work with the NAACP, Ifill has been a prominent voice on a number of issues important to Democrats, including voting rights, diversity training and other civil rights issues.
Some advocates have pushed Biden to consider professional diversity when considering his court picks, and Ifill’s history as a civil rights lawyer would fit the bill. But one potential obstacle facing Ifill is that she has not been through a Senate confirmation hearing, and the White House may not want to risk it in such a narrowly divided Senate.
Other names to watch:
Circuit Judge Eunice Lee and Circuit Judge Candace Jackson-Akiwumi have both been floated as potential candidates.
Both were former public defenders nominated by Biden to serve on the federal bench and were confirmed last year. Both are women of color, and their past experience would bring professional diversity to the Supreme Court.
Multiple reporters asked White House press secretary Jen Psaki on Wednesday about the potential of nominating Vice President Harris, a former California attorney general. Biden has said he intends to run alongside Harris in 2024 — and she said she’s not interested in the job.
Some advocacy groups have urged Biden to consider nominating a Latino judge to the bench, though doing so would likely inflame tensions with some of the Black voters who propelled Biden to the Democratic nomination and ultimately the White House.
The League of United Latin American Citizens (LULAC) on Wednesday suggested Sen. Catherine Cortez Masto (D-Nev.), who is up for reelection this year, and Health and Human Services Secretary and former California Attorney General Xavier Becerra as potential nominees.
The Hill has removed its comment section, as there are many other forums for readers to participate in the conversation. We invite you to join the discussion on Facebook and Twitter.