Biden, 79, is an old man in a young country. Of the 115 justices to serve on the Supreme Court, 16 have been confirmed since Biden was elected to the Senate half a century ago. Assuming Democrats can confirm his nominee through a 50-50 Senate, Biden is poised to select just the third African American and sixth woman ever to serve.
The president hopes to announce his choice by the end of February. Sadly, relatively few Black women serve as federal appellate judges, which has been the traditional pipeline for justices. (Biden has nominated eight Black women to circuit courts since taking office, and five have been confirmed.) “But he does not believe that is a prerequisite,” White House press secretary Jen Psaki said Thursday.
Because this nominee will not tip the balance of power on a court that conservatives dominate 6-to-3, the confirmation fight might not be as scorched-earth as we’ve come to expect. But this is an election year, and control of the Senate is on the line in the midterms. Biden wants to galvanize his base, but he does not want to pick someone who won’t get the backing of moderate senators in his own party from West Virginia and Arizona.
With all that in mind, we asked some of our pundits to rank who they think Biden is most likely to select…
— James Hohmann
D.C. Circuit Judge Ketanji Brown Jackson
Black women have been shut out for so long that there is an embarrassment of riches to choose from. All of the women listed here are at least as qualified as the 108 White men who have been appointed to the court. Honestly, I could come up with the names of 40 Black women as easily as four.
First among them, though, is Ketanji Brown Jackson. Her résumé is from central casting: double-Harvard, both undergrad and law degrees with honors. Clerked for Breyer, the justice she would replace. The left loves that she’s a former public defender. The right might be impressed that former House speaker Paul D. Ryan is a fan (as well as her relative by marriage). This is a no-brainer. Let’s fast-forward to who plays Jackson in the inevitable biopic about the first Black woman to serve on the Supreme Court. — Paul Butler
Sitting now on the U.S. Court of Appeals for the D.C. Circuit, a traditional feeder for the Supreme Court, Jackson has the inside track. She drew unanimous support from Democrats and three GOP members in her circuit court confirmation. With top-flight academic qualifications and decades ahead to serve on the high court (she’s only 51!), she has to be the overwhelming favorite. — Jennifer Rubin
Jackson is the most conventional and obvious choice, and Biden usually settles on the most conventional and obvious choice when making major decisions such as this. Jackson filled Merrick Garland’s seat on the D.C. Circuit, the second-most-powerful court in the country, after he stepped down last year to become attorney general. Some prominent Democratic insiders encouraged President Barack Obama to pick Jackson instead of Garland after Justice Antonin Scalia’s death in 2016 on the belief that Republican obstruction of a Black woman would have been more untenable. We’ll never know whether they were right.
There’s some nice symmetry to Jackson’s Breyer clerkship, too: Brett M. Kavanaugh clerked for Anthony M. Kennedy, whom he replaced in 2018, and John G. Roberts clerked for William H. Rehnquist, whom he succeeded as chief justice. Both Kavanaugh and Roberts were also elevated from the D.C. Circuit. — James Hohmann
Like every other court-watcher (and every pundit here!), I fully expect Biden to nominate Jackson to replace Breyer because, well, the D.C. Circuit has been the default launch platform for five decades for the Supreme Court. Her confirmation would be swift, and though a number of Republican senators will oppose her because of her judicial philosophy, there will also be a sizable number of GOPers who believe a president early in his second year of a term has wide discretion when it comes to court nominees. — Hugh Hewitt
California Supreme Court Justice Leondra Kruger
If for any reason there is some sort of personal disconnect between the president and Jackson, then California Supreme Court Associate Justice Leondra Kruger is the next most obvious choice (and at 45 years old, the one who would probably be the last of the reconstituted nine to retire if God is good and the actuarial tables sound). — Hugh Hewitt
As a judge on the California Supreme Court, she would follow other famous justices who came to the high court without federal court experience, including Rehnquist. Considered a “moderate” or incrementalist, she might attract more Republican support. Her wide experience as a principal acting deputy solicitor general and deputy assistant attorney general in the Office of Legal Counsel round out her impressive résumé. — Jennifer Rubin
Kruger is definitely where Biden will end up if he decides he needs a more middle-of-the-road pick. She turned down entreaties last year to become the administration’s solicitor general, but it’s hard to imagine the White House holds that against her. Plus, Justice Elena Kagan is reportedly a fan.
Some might say 45 is too young, but Clarence Thomas was only 43 when President George H.W. Bush nominated him in 1991. And President Ronald Reagan also turned to state courts in 1981 when he picked Arizona Supreme Court Justice Sandra Day O’Connor to be the first female justice — something he had promised to do during the campaign — because there was not a large bench of female federal judges. — James Hohmann
Like Jackson, Kruger is a straight-up brainiac; she even served as editor in chief of the Yale Law Journal, the nation’s most prestigious law review. Also like Jackson, Kruger is one of a small number of Black women to have clerked for a Supreme Court justice — in her case, John Paul Stevens. (How lovely it would be to have a Ruth Bader Ginsburg clerk in the mix, but Ginsburg never hired a Black female law clerk … though that’s another op-ed.)
But Kruger’s judicial restraint is a flaw, not a feature. She is simply too moderate for this moment and this court, especially on criminal cases. According to the New York Times, Kruger likes being described as “cautious and deliberate.” That’s the opposite of the court’s right-wing ideologues, and it’s high time progressives learned to fight fire with fire. — Paul Butler
U.S. District Judge J. Michelle Childs
In this gravity-defying mix, Childs’s main claims to fame are that she didn’t go to an Ivy League school and that House Majority Whip James E. Clyburn (D-S.C.) is pushing her. But Childs’s résumé, glittery as it is, isn’t as spectacular as Jackson’s or Kruger’s. Plus Childs’s lack of national exposure and a lengthy paper trail make her more of a risk. Congressman Clyburn, the president will have to catch you later. — Paul Butler
Clyburn arguably saved Biden’s presidential run with his endorsement before the South Carolina primary, so the fact that Childs, 55, comes highly recommended from him has to carry some real weight. She’s currently a federal district court judge in South Carolina, and as Clyburn has pointed out, she has been a state court judge, too. And as a graduate of a public law school, yes, she’d further weaken the Ivy League stranglehold on the court. — Jennifer Rubin
Does Biden feel he has to give something to Clyburn and the Congressional Black Caucus? If so, Childs is the choice. She has been a district court judge in Clyburn’s home state for a decade, and Biden nominated her recently for the D.C. Circuit. Her confirmation hearing this week for that job will be worth watching, to see both how she handles the klieg lights and how well she responds to GOP questioning. (Clyburn claims both of South Carolina’s Republican senators would support her.)
Childs’s boosters spin the fact that she went to state schools in Florida and South Carolina as an asset — but that’s not new. Republicans also touted it about Justice Amy Coney Barrett, who went to (private) schools in Tennessee and Indiana. Biden also didn’t attend top-tier schools and bragged about this on the campaign trail. — James Hohmann
7th Circuit Judge Candace Rae Jackson-Akiwumi
She sits on the U.S. Court of Appeals for the 7th Circuit but has served for less than a year as a federal judge. In her favor: Biden has championed a number of lower-level federal court nominees with public defender experience. — Jennifer Rubin
Sen. Richard J. Durbin (D-Ill.) chairs the Judiciary Committee, and he was a big backer of Jackson-Akiwumi when Biden nominated her for the 7th Circuit. She’s still green, but her public defender chops and Princeton/Yale résumé (along with the support of Durbin) would make her a young, appealing justice. — Hugh Hewitt
Delaware Supreme Court Justice Tamika Montgomery-Reeves
What if the president likes a surprise? He could be listening to his Delaware pal and Senate Judiciary Committee member Chris Coons, talking about their fellow Delawarean, Delaware Supreme Court Associate Justice Tamika Montgomery-Reeves. Reeves is another candidate who would break the Ivy League barrier, and she would be doing a solid for the First State, which has never boasted a Supreme Court justice. — Hugh Hewitt
NAACP Legal Defense and Educational Fund President Sherrilyn Ifill
Full disclosure: I have know Ifill since we were law students in the 1980s. As America has learned during her high-profile tenure as head of the NAACP Legal Defense and Educational Fund, to know Ifill is to love her. She is crazy smart, mad funny, one of the most charismatic and empathetic people in public life and a brilliant legal strategist. Of all of the names in play, Ifill would be the best at the most important work any justice appointed by a Democratic president will have for the next 20 or 30 years: writing dissents. But you don’t run the nation’s preeminent public interest law firm without making some enemies, especially among Senate Republicans, so Ifill might have the toughest confirmation battle of any of the contenders. — Paul Butler
Ifill just announced her retirement from leading the NAACP Legal Defense and Educational Fund. Her advocacy on voting rights and judicial reform would delight progressives and absolutely wig out the GOP. Without judicial experience, she remains a long shot. — Jennifer Rubin
Two more faves of the Senate
A lot of media attention will go to Childs because of Clyburn’s endorsement, but don’t sleep on other Black female jurists who could benefit from senatorial backing. Biden emphasizes that he will consult heavily with senators before making a pick. There’s Jackson-Akiwumi, too, or a senator’s favor could benefit 2nd Circuit Judge Eunice Lee, a former New York public defender, who hails from the state represented by Senate Majority Leader Charles E. Schumer. Finally, there’s federal district court Judge Wilhelmina “Mimi” Wright from Minnesota, a state represented by another member of the Senate Judiciary Committee: Sen. Amy Klobuchar (D). — James Hohmann
Three wild cards
Kristen Clarke, who runs the Justice Department’s civil rights division, would be popular with the left, but she was only confirmed in May on a 51-to-48 vote. — James Hohmann
L. Song Richardson is the president of Colorado College and a former dean of University of California at Irvine Law School. She’s a highly respected legal scholar, and her appointment would be a two-fer. There has never been a Black woman or an Asian American justice. Richardson is both. So, for the record is Vice President Harris … but she already has a good government job. — Paul Butler
Leslie Abrams Gardner, a federal district judge in Georgia, is the sister of Democratic candidate for governor Stacey Abrams. She’s only 47, went to Brown and Yale Law School, and was an assistant U.S. attorney. — James Hohmann
The president continues to say he is running in 2024, and thus Georgia, Nevada, Pennsylvania and Wisconsin remain places that need lots of attention from Team Biden. I’m not an expert on which judges from swing states might attract the eye of a judicial talent scout who’s also tasked with reelection considerations, but if there is genuine ambition about 2024, look to the benches of the states where every little bit could help a president burdened by upside-down numbers. — Hugh Hewitt