With Justice Stephen Breyer’s retirement plans unfolding Wednesday, President Joe Biden has his first chance to fulfill his 2020 campaign promise of nominating a black woman as a Supreme Court justice.
“We need to put a black woman on the Supreme Court,” then-candidate Biden tweeted in February 2020, amplifying his commitment to champion diverse nominees under his administration. The president has nominated more black women to the U.S. Court of Appeals than any other administration before him, with eight nominations and five confirmations so far.
While Biden has not named any selections for Breyer’s replacement, one of his appointees confirmed in June, Judge Ketanji Brown Jackson of the United States Court of Appeals for the District of Columbia Circuit, was on former President Barack Obama’s short list in 2016.
Jackson is 51 years old, making her one of the youngest viable selections to fill 83-year-old Breyer’s seat. She also previously clerked for Breyer and served as a U.S. District judge from 2013 to 2021.
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A pair of black female appellate court judges, Candace Jackson-Akiwumi on the U.S. Court of Appeals for the 7th Circuit and Tiffany Cunningham on the U.S. Court of Appeals for the Federal Circuit, were also appointed at about the same time as Jackson and are among 40 federal judges in the same demographic.
Another selection could be 45-year-old Justice Leondra Kruger of the California Supreme Court, who served as acting deputy solicitor general under the Obama administration. She has been repeatedly named as a consideration for the Supreme Court and notably twice declined the position of U.S. solicitor general in the Biden administration, according to the National Law Journal.
The president’s eagerness to appoint the first black female justice to the Supreme Court is one of the cornerstones of his administration’s agenda to “ensure that the nation’s courts reflect the diversity that is one of our greatest assets as a country” by naming a professionally diverse array of judges, according to the White House.
With Democrats holding the majority in the Senate, the prospects for Biden’s inevitable selection are in much better hands than when Obama nominated now-Attorney General Merrick Garland, whose confirmation was thwarted in 2016 by then-Senate Majority Leader Mitch McConnell.
“If Senate Democrats are unified, Biden’s nominee will end up on the court,” said Jared Carter, a constitutional law expert at Vermont Law School. “However, Biden will still need to appease centrist Democrats like Sens. Kyrsten Sinema and Joe Manchin in order to get his nominee through,” Carter told the Washington Examiner Wednesday.
Biden is already on a record-setting pace for judicial nominations following his first year in office, doubling the number of federal judges confirmed under President Donald Trump in 2017, the first year of his administration. There have been 13 rounds of nominations by Biden since last January, amounting to 83 nominees in total.
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The prospect of naming a new Supreme Court justice provides Biden the ability to fortify a liberal seat on the bench for years to come. Still, his selection will not alter the present 6-3 conservative majority on the highest court during a session in which prominent cases including abortion laws, religious liberty issues, and gun rights challenges are on the docket.
“Replacing Justice Breyer won’t alter the ideological balance of the court but creates an opportunity to replace the Clinton nominee with a younger, and perhaps more progressive, nominee,” said Jonathan Adler, a law professor at Case Western Reserve University.
