Biden’s short list

Liberal judicial advocacy groups breathed a collective sigh of relief as Justice Stephen Breyer announced he would retire from the Supreme Court at the end of the current term. Breyer’s retirement clears the way for President Biden to deliver on his campaign promise to nominate the first black female to the high court.

A recent ABC News/Ipsos poll found a majority of Americans want Biden to review “all possible nominees” as opposed to promising a candidate of a specific gender and race. But Biden is not the first presidential candidate to promise to nominate a justice from a specific demographic group. In October 1980, then-candidate Ronald Reagan said he would name a woman to the court and delivered with the appointment of Justice Sandra Day O’Connor.

Sen. Roger Wicker, R-Miss., painted Biden’s pledge to nominate a black female as “affirmative action”—a view not shared by Sen. Lindsey Graham, R-S.C., who heartily supports South Carolina U.S. District Judge Michelle Childs. Her recent nomination to the D.C. Court of Appeals has been halted while she is considered for the high court. Appointed by President Obama, Childs has served for 10 years on the federal bench. In a recent interview on CBS News’ Face the Nation, Graham lauded Childs as highly qualified, claiming “there’s no affirmative action component if you pick her.”

Another potential pick is Judge Ketanji Brown Jackson, confirmed in 2021 to the D.C. Court of Appeals. Judge Jackson was a law clerk to three federal judges, including Justice Breyer, and her background as a former public defender adds to her appeal for many.

California Supreme Court Justice Leondra Kruger, described as a “liberal moderate,” rounds out the short list circulated by the media since last summer. In 2014 at the age of 37, Kruger was the youngest appointee to California’s high bench. Prior to joining the bench, Kruger worked in both the U.S. Solicitor General’s Office and the Department of Justice Office of Legal Counsel. She has argued many times before the U.S. Supreme Court.

Since Breyer’s announcement, additional candidates for consideration have surfaced.

Judge Tiffany P. Cunningham, a 2021 appointee to the Federal District Court of Appeals is considered a long shot. With decades-long experience as a patent practitioner, Cunningham could bring unique expertise to the court’s deliberations in the nuances of intellectual property cases.

Judge Candace Jackson-Akiwumi of the 7th Circuit Court of Appeals and Judge Eunice Lee of the 2nd Circuit Court of Appeals, both recent Biden appointees, boast similar qualifications: Yale Law degree, previous Appeals Court clerkship experience, and extensive public defender experience.

Judge Holly A. Thomas, another Yale Law alum recently confirmed to the 9th Circuit, previously served on the Los Angeles County Superior Court. Her background includes work for the NAACP, the U.S. Department of Justice Civil Rights Division, and the New York Solicitor General’s Office.

District Judge Wilhelmina “Mimi” Wright, a judge on Minnesota’s federal district court, enjoys historical notoriety as the only jurist with service at all three levels of the state’s court system.

Georgia Federal District Court Judge Leslie Abrams Gardner, previously a prosecutor for the state’s U.S. Attorney’s Office, could face an uphill battle as the sister of Democratic gubernatorial candidate Stacey Abrams.

North Carolina Supreme Court Justice Anita Earls completes the list of current jurists under consideration. At 61, her age may reduce her appeal as a lifetime appointee since younger nominees enjoy a longer tenure and thus greater opportunity to influence the court.

Nonjurists added to the growing list include: Nancy G. Abuda of the Southern Poverty Law Center; public defender Arianna J. Freeman; Sherrilyn Ifill, a civil rights attorney who recently served as president and director-counsel of the NAACP Legal Defense and Educational Fund; and lastly, Melissa Murray.

Regardless of who the president picks, a Breyer clone is unlikely. Justice Breyer possessed a unique skill and desire to seek consensus among the justices, despite his propensity to vote with the more liberal members. Even though Breyer’s replacement may not shift the current balance of the court, like Justice John Marshall Harlan in Plessy v. Ferguson, perhaps she will author a minority dissent that could influence the court’s jurisprudence for decades to come.