Just a few weeks before the country shut down in March 2020, Joe Biden made a Supreme Court promise that set a ticking time bomb for Democrats. “I’m looking forward to making sure there’s a black woman on the Supreme Court,” then-candidate Biden said during the final Democratic primary debate.
His reason for making the promise at that time was simple: The South Carolina primary was coming up, and the Biden campaign believed that it needed to win convincingly if it wanted to dominate on Super Tuesday. One of Biden’s key supporters in the state, Rep. Jim Clyburn, advised him that a gesture at the high court could gain him black support. And, the congressional power broker later added, it was an issue that could be a big winner for all Democrats courting black votes: “Black women think they have as much right to sit on the Supreme Court as any other women, and up to that point, none had been considered.”
Clyburn’s prediction proved prescient. Only a few months later, the George Floyd killing put race back at the center of national politics. And then, just before the election, the death of Justice Ruth Bader Ginsburg, and the rapid nomination and confirmation of her successor, Justice Amy Coney Barrett, recharged Democratic fears that Republicans would completely restock the Supreme Court with their preferred jurists.
Those fears, of course, were allayed when Biden defeated Donald Trump only a few days after Barrett’s confirmation. But liberal judicial activists were determined not to lose another Supreme Court seat to the Republican legal machine. Biden’s South Carolina promise became a rallying cry, and the aging Justice Stephen Breyer became a target for those pushing for more racial and gender diversity on the high court. “Breyer, retire,” blared the activist group Demand Justice on a billboard truck outside the court. “It’s time for a black woman Supreme Court justice.”
But these things are never quite so simple. Breyer made clear that he would leave on his own time. First, the 83-year-old justice said he didn’t really think about retiring because “I enjoy what I’m doing.” Then, he said that he would step aside “eventually.” Last summer, he gave a blunt answer to persistent questions about whether he had made up his mind: “No.” All the while, he delivered warnings about politicization of the Supreme Court. When the White House leaked the news last week about his actual retirement a day early, it was hard not to see the move as revenge for Breyer’s dithering.
It was enough of a headache to get Breyer off the court, but finding a replacement for him will be even worse. There are not that many black women in the upper reaches of the federal judiciary, and those who are could be tough sells for centrists in both parties. And Biden’s campaign promise is not the sort that he can quietly take back. The administration has repeated it over and over again, and when Breyer made his intention to retire official, the promise became the central focus of what is shaping up to be a bitter fight in which racial identity is pitted against professional qualifications.
The candidate who most fully embodies this struggle also happens to be the favored option among Democrats, Judge Ketanji Brown Jackson. She’s 50 and presents a relatively young option for Biden. Her resume also fits the bill for the high court. Jackson is a Harvard Law School graduate, where she edited the Harvard Law Review. She clerked for Breyer upon graduation. This is not her first brush with the Supreme Court. Former President Barack Obama put her on his short list after Justice Antonin Scalia died in 2016. At the time, Jackson was simply a district court judge and was unlikely ever to be confirmed to a seat that Obama did not get to fill anyway. But now, in part due to pressure from Senate Democrats, she sits on the powerful U.S. Court of Appeals for the D.C. Circuit, often nicknamed the “unofficial farm team for the Supreme Court.” It has produced three sitting Supreme Court justices: Chief Justice John Roberts, Brett Kavanaugh, and Clarence Thomas. Scalia and the late Ginsburg also sat on the court.
But Jackson hasn’t even sat on that court for a year. And in that time, she’s only been involved in a major case, in which she joined an opinion halting Trump’s attempts to block the release of documents related to the riot last year inside the Capitol; Jackson has not yet authored any opinions of her own on the D.C. Circuit, leading conservative legal scholars such as Ed Whelan to declare that she is not sufficiently qualified for the Supreme Court.
And it’s not just conservatives who worry that Jackson is not equipped for the job. Shortly after her name began circulating among court watchers, the legal writing professional Ross Guberman ran an analysis of Jackson’s work with his BriefCatch software. The results were not pretty, he found. Her prose has a tendency to be “plodding, perhaps even painful,” and her metaphors often “clash and clang.” And, he warned, “Judge Jackson appears unusually comfortable with the charged rhetoric that you see in many of Justice Sotomayor’s recent dissents.”
That last comparison could spell trouble. Justice Sonia Sotomayor, who was a great diversity pick on paper, turned out to be one of the Obama administration’s most embarrassing legacies. And in private, liberal legal gurus admitted this freely. “Bluntly put, she’s not as smart as she seems to think she is,” wrote Harvard Law professor Laurence Tribe in a leaked memo. “And her reputation for being something of a bully could well make her liberal impulses backfire.” Nominating Jackson could pave the way for a generation of Sotomayors. “Will the next Justices be picked for their talents at cobbling together majorities — or for their knack for rallying the troops in dissent?” Guberman asked in his report.
Guberman also analyzed the legal writing of the runner-up favorite, California Supreme Court Justice Leondra Kruger. He found her writing “unusually clear, spare, and focused” and added that she “has a knack for making legal analysis read like clockwork.” Still, Kruger is damaged goods in her own way. She has reportedly twice refused to leave her seat for the solicitor general’s office, which she served in during the Obama administration.
In that time, she argued a series of cases before the Supreme Court, including Hosanna-Tabor v. EEOC, a landmark First Amendment case that could sink her nomination. Hosanna-Tabor involved the so-called “ministerial exception,” which allows churches to disregard certain laws regarding sex-based hiring and firing insofar as they pertain to ministry. The case determined that teachers at religious schools fall under this exception.
Kruger, arguing on behalf of the Obama administration, contended that the First Amendment did not even allow for the ministerial exception. That position, which was not persuasive to the court, prompted Justice Elena Kagan to call Kruger’s reasoning “amazing” — and not in a complimentary light.
These are not the only black women from whom Biden can choose. There are a number of creative ideas out there, but their feasibility becomes less likely rather quickly. Some have argued in favor of Judge J. Michelle Childs, who serves on the U.S. District Court for the District of South Carolina. That move would throw a bone directly to Clyburn, who is in some ways responsible for Biden’s election in the first place. Then there are the ridiculous options: former first lady Michelle Obama or Vice President Kamala Harris. Demand Justice has its own list, of course, but they’re mostly activists: author Michelle Alexander, NAACP Legal Defense Fund counsel Sherrilyn Ifill, and NYU law professor Melissa Murray.
No matter whom Biden picks, Democrats will likely confirm her. Or, at least that’s what South Carolina Sen. Lindsey Graham said after Breyer made his announcement. “If all Democrats hang together, which I expect they will, they have the power to replace Justice Breyer in 2022 without one Republican vote in support,” he said. And not long after, West Virginia Sen. Joe Manchin, one of the few Democrats to break ranks during the Biden presidency, signaled that he agreed. Manchin told NBC that all the potential picks circulating the White House right now are “excellent names.”
But that doesn’t mean Senate Democrats are off the hook, necessarily. They will likely confirm Jackson or Kruger or whomever the nominee is. But Biden’s promise will ensure that people will wonder if the next justice will be confirmed primarily because of her qualifications or because of her race. It’s hard not to suspect the latter. And it’s hard not to see how Biden’s promise, which secured his spot in the 2020 race, could easily hurt his party in the midterm elections.
Nic Rowan is managing editor of the Lamp.
