Justice Stephen Breyer is stepping down from the Supreme Court, effective at the end of the term. This means that President Joe Biden can now fulfill one of his boldest campaign promises: to put a Black woman on the Supreme Court.
There has never been a Black woman on the court (there have been just two Black men), and there’s been only one woman of color (Sonia Sotomayor) among the five women allowed to serve on the nation’s highest court in US history. There’s also never been an Asian American, a Muslim American, a Native American, or an openly LGBTQ American on the court. Thurgood Marshall, Sandra Day O’Connor, Clarence Thomas, Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, Amy Coney Barrett: That is the full and complete list, in order of appearance, of non-cis-het-white-male people who have served on the Supreme Court. Ever.
I bring this up because some people are going to say, “But Biden should just nominate the most qualified person possible, regardless of race,” and I welcome those people to kiss my black ass. White guys have accounted for 108 of the 115 Supreme Court justices in history. I think it’s time we opened up the search parameters.
In fact, there are tons of people qualified to be on the Supreme Court, including people who come from groups historically ignored by the white males who have nominated and confirmed other white males to lord over the rest of the country. Many of those qualified individuals happen to be Black women. Biden will have a wealth of experience, intellect, and accomplishments to choose from, even if he focuses on just one historically underrepresented group.
So, let’s talk about some of them. I’ve compiled a short list of potential nominees, just from talking with court watchers out in these streets (and on social media). The Biden administration didn’t call me to let me in on their thinking (shocking, I know), but here are some of the names people will see bandied about in the coming days. I’ve listed them in order of their current judicial hierarchy.
Ketanji Brown Jackson
Judge Jackson is the leader in the clubhouse for this appointment, and for good reason. She’s currently a judge on the US Court of Appeals for the D.C. Circuit, nominated by Biden to replace Merrick Garland. That means she was recently vetted and confirmed by the Senate, with 53 votes. Lisa Murkowski, Susan Collins, and Lindsey Graham all crossed party lines to confirm her. Plus, the donors who control Joe Manchin and Kyrsten Sinema allowed those senators to vote for her confirmation as well. Having a nominee who can get even one Republican vote and keep the Democratic Party together is likely to be a big factor in Biden’s decision making.
But Brown Jackson is hardly a “compromise” candidate. She’s a former public defender. She headed up the US Sentencing Commission during the Obama era, where she worked to reduce the discrepancies between punishments for crack-cocaine and powder cocaine. Once on the bench, she issued a major ruling forcing the Department of Corrections to be in compliance with the American with Disabilities Act. And, not for nothing, she also issued a ruling that essentially forced former White House counsel Don McGahn to cooperate with congressional oversight. She went to Harvard college and Harvard Law School, is impeccably qualified, is only 51 years old, and actually clerked for (wait for it) Stephen Breyer, which should diminish any claims that she’s a departure from her predecessor.
She was said to be on the short list when Obama eventually nominated Merrick Garland in 2016. That means she’s already been deeply vetted by at least one White House and is a known quantity to Biden.
I’ll be shocked if she’s not the pick.
Judge Jackson-Akiwumi is a long shot, less well known than others on this list. She has the educational background we tend to see among nominees (Princeton, Yale Law School) and was recently confirmed to the Seventh Circuit with the same 53 votes Brown Jackson received. But she’s got something extra on her résumé: She’s spent most of her career as a federal public defender.
There are currently no justices on the Supreme Court who have that kind of experience in criminal defense. Biden has made a commitment to nominate judges with more diverse professional backgrounds and has followed through on that with his lower court appointments. Jackson-Akiwumi would add to the diversity of the court in more ways than one.
Judge Childs currently sits on the US District Court for South Carolina. She’s an expert in labor law and has served as commissioner of the South Carolina Workers’ Compensation Commission.
A former labor lawyer would be a shot in the arm to pro-labor forces within the Democratic base. And given the Supreme Court’s ongoing attack on labor—most recently in the form of its decision to undermine OSHA by blocking its vaccine rule—nominating an expert like Childs is timely.
Childs also brings educational diversity. She got her BA from the University of South Florida and her JD from the University of South Carolina. Currently, Coney Barrett is the only person on the Supreme Court who did not go to Harvard or Yale, and she got her law degree from Notre Dame. Childs would be the only justice to go to a state school, something that Scranton Joe might really want to highlight.
And it’s worth noting that Childs has the support of noted Biden-saver Representative Jim Clyburn. I’m sure that the administration will give Childs a very serious look.
Judge Kruger is currently an associate justice on the California Supreme Court. Which is a state court. The last time a Supreme Court nominee jumped from the state court to the Supreme Court without first sitting on the federal bench was in 1981—when Ronald Reagan appointed Sandra Day O’Connor to the top court. Suffice it to say, it is not the usual path.
But Kruger, who was editor in chief of The Yale Law Journal, is going to be talked about because she writes like fire. She was a deputy solicitor general during the Obama administration and received high marks for her eloquent argument style. It’s fun to think of her as a Democrat’s Neil Gorsuch, somebody who can be held out as the sharpest tool in the whole shed. Her opinions thus far have been pretty moderate and mainstream, which is kind of the opposite of what Gorsuch has been on the bench. A great example of this is her 2019 unanimous opinion throwing out a death penalty conviction because the prosecution improperly used evidence that the defendant was a white supremacist against him.
I think that Kruger is more likely to be appointed to the next open seat on the Ninth Circuit (or perhaps fill a soon-to-be-vacated seat on the D.C. Circuit) than to the Supreme Court. But she’s only 45. Her judicial career is really just getting started.
Ifill is not a judge. Instead, she’s been the president of the NAACP Legal Defense Fund since 2013. If that qualification sounds familiar, it should: Thurgood Marshall was president of that organization before he was appointed to the Supreme Court.
Ifill has literally been at the forefront of the fight for civil rights for a decade and been engaged in the struggle for a lot longer than that. She is among the most respected lawyers in the United States by any reasonable definition and would likely fast become the conscience of the court.
Her high-profile advocacy (e.g., a lawsuit Ifill and the LDF filed against Donald Trump and his campaign’s efforts to disenfranchise voters in Michigan) would draw considerable ire from Republican senators, no doubt. But her position makes her one of the most well-known and -vetted people in the legal landscape. Biden would know exactly what he’d get with Ifill: a lion in defense of rights.
There are other qualified Black women, of course, but people need to resist the urge to just name any Black woman they can think of with a law degree whom they like (Kamala Harris, Stacey Abrams), Black woman with a law degree who might also be some kind of deity (Michelle Obama), or Black woman with a law degree they like who would maximally troll the Republicans (Anita Hill). I get it: Black women are smart and cool. Getting voters “excited” by naming famous Black women seems like a useful thing to do ahead of the midterms.
But Brown Jackson, Jackson-Akiwumi, Childs, and Kruger are plenty famous within legal circles. Ifill is outright famous. The goal should be to make them more famous among people who don’t follow the courts and don’t know what judges actually do for a living.
And all of these Black women are morally qualified as well. I cannot claim to know the personal histories of each of these people. I do not know if they are fun at parties. Maybe one of them has unpaid parking tickets. Maybe one failed to disclose scented candles given to them in the late ’90s. But I’m pretty sure none of them have ever been accused of trying to rape somebody in high school. I’m confident that none of them have perjured themselves in congressional testimony. Supreme Court justices should be held to a high standard of character, and Biden will nominate someone who meets it.
Think about it this way: When Trump needed a white-wing woman to replace Ginsburg and help overturn abortion rights, he didn’t grab the most “famous” anti-abortion white woman he could think of. He didn’t nominate Jeanine Pirro or Dana Loesch or Ivanka (like I’m sure he thought about). He nominated a judge, a real-life judge with a history of coming down on the Republican side of issues. And then his administration and right-wing media explained to the base that Barrett was the anti-precedent, forced-birth aficionado they’d been promised. The right wing doesn’t nominate judicial “stars”; it makes them.
That’s what the Biden administration should do. Nominate a good judge and then explain to the base that she is what they were promised. All of the judges I’ve mentioned fit the bill. They care about justice, they care about equality, they care about the environment, and they view women as people and not incubators. They will show up to work and do their part to move the law in a more just direction.
We know they will be attacked. Some (mainly white guys) will say they’re too liberal, while others (also mainly white guys) will say they’re not liberal enough. Their qualifications will be denigrated, and Marsha Blackburn will call them “criminals” while Mike Lee and Josh Hawley will use every dog whistle in the book. And as the hits come in, some Democrats will start to whisper: “I would have supported [any Black woman who wasn’t picked] but I don’t know if I can support [Black woman who was picked].”
Don’t do that. Don’t sit there and say that Biden should have nominated Oprah, when we know damn well that even Oprah would get maligned by these bad-faith Republicans. Biden will pick an immaculately qualified, future superstar who will spend the rest of her life fighting for the rights Republicans try to take away. Make her the inevitable reality instead of constantly calling out for a woman not in the room.
Biden has a deep bench of options and will make a fantastic choice. Defend her.