In a surprising twist of events, it was announced that Justice Stephen Breyer would retire from the Supreme Court on Wednesday. The announcement came as a shock, as much of last year Justice Breyer was being pushed to retire by his party to make the slot open for a younger justice.
On Thursday, Breyer formally announced his retirement in-person with Biden. With Breyer’s retirement, the open seat now gives President Biden the opportunity to make good on the pledge he made during the 2020 campaign that if given the chance he would nominate the first Black woman to the Supreme Court. The motives behind that maneuver have since been debated, as it was crucial to his campaign run.
Biden reaffirmed the vow Thursday, stating “The person I will nominate will be someone of extraordinary qualifications, character, experience and integrity. And that person will be the first Black woman ever nominated to the United States Supreme Court.”
And while it’s important to have a Black woman hold a seat in the highest court in the country, as the first Black woman and third black person, it is more important that this Black woman lean towards the legacy of Thurgood Marshall and not the conservative legacy of Clarence Thomas.
While Biden’s Supreme Court nominee is essential to further our democracy, it is absolutely an uphill battle for the Democrats, as Trump’s one-term legacy remains. Donald Trump was able to appoint about as many federal judges as Presidents Obama, Bush, and Clinton appointed individually in their respective two terms. Trump’s appointments flipped the balance of several appeals courts from majority of Democratic appointees to a majority of Republican appointees.
With affirmative action and Roe v. Wade in the crosshairs of the Republican party, every federal judge Biden appoints is crucial. Though there is a very long list of qualified Black women for Biden to choose from, it is expected for each nominee to face extreme scrutiny from the opposing party.
Here are the eight Black women speculated to be on Biden’s shortlist:
Ketanji Brown Jackson
The 51-year-old, D.C. native graduated from Harvard College and Harvard Law School. She worked several legal jobs early in her career, including as a staff member for the United States Sentencing Commission and as an assistant federal public defender in Washington.
No stranger to Biden, Jackson was nominated to serve as a district court judge in the capital in 2012 by then-President Obama. Aside from her credentials, Jackson appears to be the obvious pick strategically, because she was just confirmed to the appeals court in June by a 53-to-44 vote. All 50 members of the Democratic caucus voted for her, as did three Republican senators: Susan Collins (R-ME), Lindsey Graham (R-SC), and Lisa Murkowski (R-AK). Three Republicans did not vote. There is no rational reason for the count to be different for the SCOTUS seat, however this is the New Trump Republican party here.
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J. Michelle Childs
Another notable pick is J. Michelle Childs. Unlike the others, Childs is the only graduate of public universities. Aside from her astute work with labor issues and workers compensation, her endorsement from House Majority Whip James Clyburn (D-S.C.) really puts her as a front runner. Clyburn told MSNBC cameras that his conversation with Biden during the campaign led to the vow to appoint a Black woman to the Supreme Court. Clyburn explained that a conversation with one his three daughters expressed an undercurrent of Black women not getting their just due from the Democrat party but especially the Supreme Court. At 55, Childs is well vetted and the bipartisan support from the likes of Graham(R-S.C.) could really help strategically as well.
The youngest of the speculated bunch, Justice Kruger, 45, of the California Supreme Court has argued 12 cases before the Supreme Court on behalf of the federal government. A Yale graduate, Kruger worked in the Supreme Court like many justices before her, clerking for Justice John Paul Stevens. During the Obama administration, she served as an acting deputy solicitor general. Kruger stands out given her moderate leanings, which may appeal to conservatives across the aisle. In 2018, Kruger authored a 4-3 ruling that upheld a law requiring people arrested for suspected felonies provide DNA specimens, even before charges are filed.
Ifill is an out-of-the-box choice, as Biden would be stepping outside the judiciary. At 59, the Queens native is a deeply respected civil rights attorney who recently announced plans to step down from her role as President and Director-Counsel of the NAACP Legal Defense and Educational Fund. A Vassar College and New York University School of Law graduate, Ifill started her career at the American Civil Liberties Union, then worked on voting rights legislation at the NAACP LDF before she joined the faculty at University of Maryland School of Law, where she taught for more than 20 years.
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Eunice C. Lee
A graduate from Ohio State University and Yale Law School, Lee, 51, is a former New York public defender. With 21 years of experience, Lee is the longest-serving public defender to ever serve as a judge on a U.S. Court of Appeals. Biden nominated her to the Second Circuit on the recommendation of Senate Majority Leader Chuck Schumer. The appointment was praised as a recognition of the need to broaden the judiciary’s legal expertise, particularly because defense lawyers are not a common choice for such posts.
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An alumna of Chicago’s public defender’s office, her appointment by Biden to the Seventh Circuit which oversees federal litigation in Illinois, Indiana, and Wisconsin—was praised by Senate Judiciary Chair Dick Durbin of Illinois. The youngest of the bunch, Jackson-Akiwumi, 43 is a Yale law graduate who clerked for a federal circuit judge before entering practice. Though she was a partner at a large law firm immediately before her elevation to the bench, she spent 10 years as a public defender.
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Wilhelmina “Mimi” Wright
A graduate of Yale University and Harvard Law School, the 58-year-old Virginia native is no stranger to firsts. In 2016, Wright became the first African American woman appointed to the United States District Court for the District of Minnesota per President Obama’s nomination. She defeated John Hancock in the general election in 2014, receiving 56.8 percent of the vote. Wright was re-elected to the court of appeals after running unopposed.
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Though an unlikely choice, Earls, a 61-year-old North Carolina Supreme Court associate justice, is a trailblazer. With degrees from Williams College and Yale University, Earls became the public face for North Carolina’s voting rights cases as she worked with the Southern Coalition for Social Justice taking on maps that were found in court to have been racially gerrymandered and voter ID laws.