The Washington PostDemocracy Dies in Darkness

Breyer’s retirement renews focus on the Black female jurists who could replace him

From left, Judge J. Michelle Childs, California Supreme Court Justice Leondra Kruger and Judge Ketanji Brown Jackson. (Charles Dharapak/AP, Todd Rogers/AP, Bill O'Leary/The Washington Post)
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The expected retirement of Justice Stephen G. Breyer this year abruptly puts a renewed spotlight on a small circle of Black female jurists who are positioned to be chosen as President Biden’s first pick to the Supreme Court, potentially marking a milestone in the country’s history.

That shortlist, which could grow, is topped by Judge Ketanji Brown Jackson, who was confirmed last year to the U.S. Court of Appeals for the D.C. Circuit as one of Biden’s first judicial nominees. Brown is a favorite of the Democrats’ liberal base, in part because of her history as a former public defender, an unusual background for a Supreme Court justice.

Another strong candidate is Leondra Kruger, a California Supreme Court justice who has previously rebuffed offers from the White House to take a job in the administration.

And a confirmation hearing slated for next week will put the spotlight on yet another Black woman who is being catapulted into the vacancy discussion: J. Michelle Childs, a federal judge and a favorite of House Majority Whip James E. Clyburn (D-S.C.). Childs seized the attention of legal observers when Biden unexpectedly nominated her last month to serve on the high-profile D.C. circuit, surprising Washington area lawyers who had anticipated a pick with local ties.

Breyer is not expected to officially step down before the court’s term ends in June, creating an usually long period during which he will be on the bench while his departure is anticipated. Senior congressional aides said the Senate can process a nomination for a Supreme Court seat before it is formally vacant.

Here's what happens after Justice Stephen G. Breyer retires from the Supreme Court – and how President Biden will pick a successor. (Video: The Washington Post, Photo: Bill O'Leary/The Washington Post)

Senators on both sides quickly spoke out Wednesday about the kind of nominee they wanted as word spread of Breyer’s impending retirement.

“The court should reflect the diversity of our country, and it is unacceptable that we have never in our nation’s history had a Black woman sit on the Supreme Court of the United States,” said Sen. Patty Murray (D-Wash.), a member of the 1992 “Year of the Woman” class of female politicians who were motivated to run after the controversial Anita Hill hearings. “I want to change that.”

Jackson, who replaced now-Attorney General Merrick Garland on the D.C. Circuit, has long been considered among lawyers and judicial activists as the clear front-runner. She has raised her profile presiding over cases involving former president Donald Trump, including whether his White House documents should be released to the congressional committee investigating the Jan. 6, 2021, attack on the Capitol.

In comparison, Kruger, a former law clerk to Justice John Paul Stevens, is viewed as more moderate, which could be an asset in a Senate that is divided 50-50 between the parties. Biden officials sought to recruit her to head the U.S. Solicitor General’s Office, where she had previously worked, but she declined, according to people familiar with the matter.

White House press secretary Jen Psaki on Jan. 26 said President Biden is committed to nominating a Black woman to the Supreme Court. (Video: The Washington Post)

Some within the party are pushing the White House to look beyond the usual sources, suggesting prominent civil rights lawyers such as Sherrilyn Ifill, the outgoing president and director-counsel of the NAACP Legal Defense and Educational Fund. But that appears to be a less likely development.

Childs, a federal judge since 2010 with a powerful patron in Clyburn, is the most recent entry in the mix, as she faces a confirmation hearing next week for her nomination to the D.C. appeals court, often a steppingstone to the Supreme Court.

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Clyburn, the third-ranking House Democrat and an influential Biden ally, said in an interview before news of Breyer’s plans emerged Wednesday that Childs would meet Biden’s oft-stated goal of bringing more diverse backgrounds to the Supreme Court. Childs, Clyburn noted, received her degrees from state universities, at a time when an Ivy League pedigree has become near-universal among the justices, with all but one attending Harvard or Yale.

“Joe Biden has talked about the kind of experiences he’d bring into the presidency,” said Clyburn, who has championed Childs as a Supreme Court contender in talks with members of Biden’s inner circle. “He was brought up in Scranton, in Delaware, educated in the public schools. That’s who Michelle Childs is.”

Democrats’ anger at Republicans’ tactics surrounding two recent Supreme Court vacancies has given an added energy and emotion to their concerns. Then-Senate Majority Leader Mitch McConnell (R-Ky.) refused to consider President Barack Obama’s nominee after the 2016 death of Justice Antonin Scalia — then whisked through Amy Coney Barrett’s confirmation in 2020, after voting in the presidential election had begun. The court’s resulting 6-3 conservative majority has already begun shifting the law sharply to the right on issues such as abortion.

Liberal organizations have been compiling information for more than a year on women seen as potential Supreme Court picks to quickly launch a public relations campaign on any future nominee’s behalf. At the same time, conservative groups such as America Rising have long been collecting documents, such as financial disclosures and employment records, to prepare opposition files and be ready to sink a candidate.

Supreme Court confirmation fights have become increasingly bloody in recent years, and the Senate’s current makeup means this one is unlikely to be an exception.

“I hope the White House and our allies prepare for the fight ahead,” said Sen. Sheldon Whitehouse (D-R.I.), a member of the Senate Judiciary Committee. “We cannot allow right-wing donor interests to tighten their grip on the court any further.” Sen. Todd C. Young (R-Ind.) announced that he would not “support a nominee who wants to legislate from the bench.”

Biden promised during his presidential campaign that he would put a Black woman on the Supreme Court at the first opportunity. Relatively few Black women serve as federal appellate judges, the traditional springboard for the Supreme Court. Biden in his first year has chosen eight Black women for those courts, expanding his own pool of possible picks. (Five of the eight have been confirmed.)

“As long as I can remember, people have looked upon the D.C. Circuit as being the second-most powerful court in the country,” Clyburn said as he spoke about Childs. “People have long said that it is kind of the training grounds for the Supreme Court.”

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Biden has already interviewed Jackson, meeting with the judge as part of her D.C. Circuit nomination process last year, though nomination veterans say it is rare for a president to personally interview candidates for judgeships lower than the Supreme Court. The president does not appear to have spoken with Childs, according to her nominee questionnaire.

The Childs decision was an unexpected one for Washington’s tightknit legal community and advocacy groups that widely believed Childs was poised to fill an opening on the U.S. Court of Appeals for the 4th Circuit, which reviews cases from her home state of South Carolina.

Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense Fund, was among those surprised by the announcement. Saenz and others said the White House had informed organizations recommending potential nominees that any candidates for openings on the D.C. Circuit required a connection to the Washington area.

A White House official declined to comment on its judicial vetting process.

Clyburn has been recommending that Biden select Childs for the D.C. Circuit since last January, before the president was formally inaugurated, according to a person close to the veteran lawmaker. He never put Childs’s name forward for the 4th Circuit, said the person, who spoke on the condition of anonymity to discuss private deliberations. In her nominee questionnaire submitted to the Senate Judiciary Committee, Childs said she was first contacted by the White House for an appeals court vacancy Sept. 29, although she did not specify which circuit.

“We are disappointed that the Biden administration missed the opportunity to appoint the first Latina or Latino to the D.C. Circuit,” said Saenz, who later added: “I don’t know what Judge Childs’s connection is to D.C., if any.”

Her confirmation hearing to the D.C. Circuit will be held Tuesday, according to two people familiar with the scheduling, although the Senate Judiciary Committee has yet to formally announce it.

The D.C. Circuit has been a steppingstone for several recent Supreme Court justices, including Chief Justice John G. Roberts Jr. and Justices Brett M. Kavanaugh, Clarence Thomas and the late Ruth Bader Ginsburg. It often handles high-profile separation-of-powers disputes as well as legal questions surrounding federal agency actions.

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Childs, 55, has not only broad experience on the federal trial court but also as a state court judge. She served in state government on the workers’ compensation commission and was deputy director of South Carolina’s Department of Labor. Childs was the first Black female law partner at the Columbia, S.C., firm Nexsen Pruet, her former colleague W. Leighton Lord said.

Childs and Jackson, who is 51, are among eight of Biden’s 19 circuit court nominees so far who are Black women. Before he took office, there were only five Black women on any federal appeals court, and none of those are younger than 69 years old, making it highly unlikely Biden would select them.

“He is building a much deeper pipeline with respect to Supreme Court vacancies,” said Christopher Kang, chief counsel of Demand Justice, a liberal advocacy group that focuses on the judiciary.

Kang, who worked on judicial nominations in the Obama White House, said the Biden administration should consider candidates beyond those with an appellate background. “One reason there hasn’t been a Black woman justice is there’s never been a pipeline from the circuit courts,” he said.

Senate Republicans zipped through Barrett’s nomination in just over four weeks to fill the seat left open by Ginsburg’s death. Barrett, a nominee of Trump, had been confirmed less than three years earlier to the 7th Circuit. A graduate of Notre Dame Law School, Barrett is the sole sitting justice without an Ivy League degree.

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If confirmed to the D.C. Circuit, Childs would join Jackson, a former law clerk to Breyer and federal public defender. She served eight years on the District Court in D.C. and before that as a member of the federal sentencing commission. Jackson was confirmed last June with the votes of three Republican senators after a mostly uncontentious hearing.

Meanwhile, Kruger, 45, was one of the youngest people ever to be nominated to the California Supreme Court. She took her seat in January 2015, nominated by Gov. Jerry Brown (D). Under the state’s system, one member of the three-person panel who found her qualified and then confirmed her was then-Attorney General Kamala D. Harris — now the vice president.

Robert Barnes, Alice Crites, Tyler Pager and Sean Sullivan contributed to this report.