Biden’s Top Contenders for the Supreme Court: How They Compare
This article was published by Bloomberg Law and written by Greg Stohr.
President Joe Biden has promised to fill the upcoming U.S. Supreme Court vacancy with the first Black female justice, opening a new battlefront as some Republicans say the focus should be only on merit, not race and gender.
The three women topping the list offer varying combinations of traditional educational and career credentials and also would bring unique life experiences and professional backgrounds to the court. Each would also offer openings for opponents to exploit, though perhaps not enough to threaten confirmation.
Biden’s nominee won’t change the ideological tilt of the 6-3 conservative majority court, but would add a fourth woman to the bench and a second Black justice to a panel that is otherwise all White with the exception of one Latina.
Here are some considerations for Biden as he makes a decision that will affect the court’s future and his own political fortunes:
Ketanji Brown Jackson
Jackson, 51, has the most complete resume of the group for a seat on the high court. She sits on the powerful U.S. Court of Appeals for the D.C. Circuit, where three current justices once served, and she won three Republican votes when the Senate confirmed her to that court last year.
Jackson “is the most eminently confirmable because she’s the most recently confirmed,” said Tom Goldstein, a Washington appellate lawyer and founder of SCOTUSblog, a website that tracks the court.
She offers the type of professional diversity that progressives crave and Biden has prioritized in his lower court nominations. Jackson is a former public defender and member of the U.S. Sentencing Commission, both jobs that no current justice has ever held.
Jackson also could have an influential backer in retiring Justice Stephen Breyer, for whom she served as a law clerk after graduating from Harvard Law School. Though it’s not clear Breyer and Biden have discussed the potential nominee, the justice lauded Jackson at an earlier stage in her career.
During Jackson’s 2012 confirmation hearing to be a federal district judge in Washington, the city’s delegate to Congress said Breyer urged a vetting committee to recommend her.
“She is great, she is brilliant,” Delegate Eleanor Holmes Norton quoted Breyer as saying. “She is a mix of common sense, thoughtfulness. She is decent. She is very smart and has the mix of skills and experience we need on the bench.”
CONS: Jackson doesn’t have any glaring weaknesses, but she would offer opponents multiple targets. As a federal district judge before her elevation to the D.C. Circuit, Jackson was involved in several high-profile cases involving then-President Donald Trump.
She ruled in 2019 that former White House counsel Don McGahn had to testify at a House impeachment hearing despite Trump’s objection. “Presidents are not kings,” she wrote in her 120-page decision.
A three-judge D.C. Circuit panel set aside her ruling, though McGahn testified after reaching a settlement with the Biden administration.
The D.C. Circuit also tossed out her ruling that provisions in three Trump executive orders conflicted with federal employee rights to collective bargaining. Similarly, she was reversed after she blocked Trump’s Department of Homeland Security from expanding the categories of people who could be subject to expedited deportation.
PROS: Like Jackson, Kruger, 45, has a stellar resume, if slightly shorter. A former law clerk to the late Justice John Paul Stevens, she argued 12 Supreme Court cases as a lawyer in the solicitor general’s office.
She would offer her own form of diversity as a state court judge, something the Supreme Court hasn’t had since Justice Sandra Day O’Connor retired in 2006. California Governor Jerry Brown appointed her to the California Supreme Court in 2015. She later became the first California justice to give birth while serving.
The Yale Law School graduate has developed a reputation as a careful and, at times, centrist jurist. That would be a selling point if the administration wants to attract Republican votes.
The Biden administration already offered her the post of solicitor general last year. She turned it down because “she thinks being a judge is what she’s meant to do in life,” said Don Verrilli, for whom she worked when he was solicitor general during the Obama administration.
The youngest of the three candidates, she could potentially serve on the Supreme Court years longer than Jackson or Childs. That could be important as Biden tries to leave a lasting imprint with what might be his only Supreme Court appointment.
“If they’re all otherwise equal, age can play a major factor,” Goldstein said.
CONS: Kruger’s decision to turn down the solicitor general position means she is the only one of the top three not to have gone through a Senate confirmation. That adds an element of risk when Democrats, who control the Senate only because of Vice President Kamala Harris’s tie-breaking vote, have no margin for error.
Kruger’s relative moderation, particularly in criminal and business cases, could make her a less favored candidate for progressive groups that have been influential on Biden’s lower court nominations.
At the same time, conservatives are criticizing an argument she made as a government lawyer in a 2011 Supreme Court case. Kruger argued that the Constitution’s religion clauses don’t give faith-based employers a special exemption from job-discrimination laws. The stance drew strong pushback from across the court’s ideological spectrum, and the justices eventually rejected the argument unanimously.
Verrilli, who was Kruger’s boss at the time, says that he, not Kruger, decided to adopt that position and he now wishes he could take it back.
Kruger “argued the case because it was her job to argue the case,” Verrilli said. “I thought she handled that difficult situation extremely well.”
PROS: The South Carolina-based judge is backed by Representative James Clyburn, the influential Democrat from her home state. Clyburn’s endorsement of Biden in the 2020 presidential primary helped rescue his flailing campaign.
Childs, 55, has also drawn praise from South Carolina’s two Republican senators, Lindsey Graham and Tim Scott. Graham said he spoke to White House Counsel Dana Remus early last week to plug Childs for the nomination, arguing she has broad bipartisan backing in South Carolina’s legal community and saying he could probably support her.
Graham and Scott both discussed the confirmation with Clyburn last week, and Scott told Bloomberg News after the meeting that Childs “has a strong record and is a strong candidate.”
Childs would add yet another form of diversity: A graduate of the University of South Carolina School of Law, Childs would be the first justice in decades to hail from a public institution. Eight of the current nine justices, all but Notre Dame Law School graduate Amy Coney Barrett, studied law at Harvard or Yale.
CONS: At 55, Childs is the oldest of the three top candidates and would be the oldest Supreme Court nominee since President Bill Clinton selected 60-year-old Ruth Bader Ginsburg in 1993. That could prove pivotal in an era when presidents want their nominees to be able to serve as long as possible.
Childs’ current status as a federal trial judge could also work against her. She would also be the first federal district judge to be elevated directly to the Supreme Court since Edward Terry Sanford in 1923. Biden nominated Childs for the D.C. Circuit, but that nomination is on hold while the president considers his Supreme Court options.
And Childs is drawing resistance from some progressives and union leaders because of her work before she became a judge. As a lawyer at Nexsen Pruet in the 1990s, Childs defended companies, including United Parcel Service Inc., against lawsuits alleging discrimination on the basis of race and sex.
“The Democratic Party has historically been and wants to see itself as the party for working people,” said Jeff Hauser, the founder and director of the progressive Revolving Door Project. “And Childs rose in law initially as someone who represented employers against employees.”