Handicapping President Biden's Supreme Court Shortlist
Here are my odds on the leading contenders—and some interesting historical analysis.
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Yesterday, minutes after I published a fun but fluffy piece about the auction of Justice Ruth Bader Ginsburg’s personal library, huge news broke: the world learned that Justice Stephen G. Breyer, 83, plans to retire from the U.S. Supreme Court at the end of the current Term. When asked during his latest book tour about his SCOTUS retirement plans, Justice Breyer had a standard response—”I don’t intend to die on the Court”—and he now appears to be following through on that.
This gives President Joe Biden the opportunity to replace Justice Breyer, the most senior member of the Court’s liberal wing, with a fellow liberal. It comes as a relief to liberals and progressives who have been pushing Breyer to retire for quite some time. Their fear was that if the Senate were to change hands, confirming a liberal successor to Breyer would become difficult or even impossible—or worse yet, if Breyer stayed on the Court long enough for the White House to change hands, he would be replaced by a conservative, just as the late Justice Ruth Bader Ginsburg was replaced by Justice Amy Coney Barrett.
Who will President Biden pick to replace Justice Breyer? I offered some off-the-cuff reactions in a lengthy Twitter thread, and now I’ll provide more detailed analysis.
Here’s one thing we do know: the Biden Administration’s SCOTUS nominee will be a Black woman. In February 2020, back when he was a presidential candidate, Joe Biden promised to appoint the first Black woman to the Supreme Court. And yesterday, after news of Justice Breyer’s retirement broke, White House press secretary Jen Psaki reiterated that pledge.
Indeed, President Biden appears to have anticipated this very moment, by placing a record number of Black women on the federal appeals courts (where every current member of SCOTUS has come from, save Justice Elena Kagan). He has nominated eight Black women to the circuit courts, and five have been confirmed—doubling the number of Black women on the federal appellate bench.
Without further ado, here are five women I view as leading contenders to replace Justice Breyer on the U.S. Supreme Court, along with my rough odds on how likely it is that each will be nominated. Odds are, of course, subject to change (and I have already changed them from the odds I put out yesterday, in fact).
Judge Ketanji Brown Jackson: 3-to-2 odds (40 percent)
Age: 51 (born September 14, 1970)
Current role: Judge, U.S. Court of Appeals for the D.C. Circuit (since June 17, 2021)
Education: Harvard University (A.B.), Harvard Law School (J.D.)
Clerkship(s): Judge Patti Saris (D. Mass), Judge Bruce Selya (1st Cir.), Justice Stephen Breyer
Senate vote history: 53-44
ABA rating: Well Qualified
Judge Jackson is widely viewed as the frontrunner—and one can see why. First, she has the credentials and experience we look for in SCOTUS nominees (for better or worse): two Ivy League degrees; multiple clerkships, including a Supreme Court clerkship; and judicial experience, including service on the prestigious D.C. Circuit and eight years as a district judge before that. Second, she enjoys strong support in liberal and progressive circles, thanks to her background as a former public defender and rulings against Donald Trump and his administration in several high-profile cases—including the Don McGahn subpoena litigation, when she declared that “presidents are not kings.”
Third, she went through the Senate confirmation process just last year, winning support from all 50 Democrats, including Senators Joe Manchin (W. Va.) and Kyrsten Sinema (Ariz.), and three Republicans—Senators Susan Collins (R-Me.), Lindsey Graham (R-S.C.), and Lisa Murkowski (R-Alaska). Yes, a senator who previously supported her could argue “SCOTUS is different”—but the prestigious and powerful D.C. Circuit ain’t chopped liver, and any senator who voted for her last year did so with the knowledge that she was a potential high-court contender. And because Judge Jackson hasn’t done anything crazy while on the D.C. Circuit—indeed, critics might complain that she hasn’t done anything, period—it’s hard to see why any of these senators would have a change of heart.
So my guess is that Judge Jackson will get the nomination—unless there are some lucky breaks in favor of Justice Kruger, to whom we now turn.
Justice Leondra Kruger: 7-to-3 odds (30 percent)
Age: 45 (born July 28, 1976)
Current role: Associate Justice, Supreme Court of California (since January 5, 2015)
Education: Harvard University (A.B.), Yale Law School (J.D.)
Clerkship(s): Judge David Tatel (D.C. Cir.), Justice John Paul Stevens
Senate vote history: N/A
ABA rating: N/A
Like Judge Jackson, Justice Kruger has a dazzling résumé—Harvard, Yale Law, D.C. Circuit and SCOTUS clerkships, service in the U.S. Solicitor General’s Office—and a solid seven years of service on the California Supreme Court. The main differences are that she’s younger and likely to be more moderate on SCOTUS than Judge Jackson, at least based on her record on the California Supreme Court, where she has sided with Republican appointees more often than her fellow Democratic appointees. Some observers also see Justice Kruger as “intellectually stronger” or boasting more “intellectual firepower” than Judge Jackson. [UPDATE (3:06 p.m.): For some important clarification of the preceding sentence, please see my Twitter thread.]
The youth and moderation cut both ways. Yes, the Biden Administration favors young nominees. But on the other hand, Justice Kruger is young enough that she’ll be a viable SCOTUS pick for another five to ten years, so she could be “saved” for a future vacancy (just as Justice Barrett was passed over for Justice Anthony M. Kennedy’s seat so she could be “saved” for Justice Ginsburg’s).
The moderation makes Justice Kruger easier to confirm, which is useful in a closely divided Senate. But on the other hand, it has made some on the left somewhat cautious about or even opposed to her. If she’s the nominee, Democrats will likely rally behind her—but in the behind-the-scenes jockeying within Democratic circles before the announcement of a nominee, I could see some progressives pushing for Judge Jackson over Justice Kruger.
Because Judge Jackson got confirmed by the Senate just last year with some Republican support, my guess is that the Biden Administration will go with her as the safest pick. But if Judge Jackson stumbles or concerns arise as to her confirmability, Justice Kruger is waiting in the wings.
Judge J. Michelle Childs: 9-to-1 odds (10 percent)
Age: 55 (born March 24, 1966)
Current role: Judge, U.S. District Court for the District of South Carolina (since August 20, 2010)
Education: University of South Florida (B.A.), University of South Carolina School of Law (J.D.)
Senate vote history: Voice Vote
ABA rating: Well Qualified (for D.S.C.; D.C. Circuit rating pending)
Judge Childs has a number of things going for her, including more than a decade of judicial experience; a working-class, non-Ivy background, at a time when many are tired of dominance by elites; and strong support from Black lawmakers, especially Rep. Jim Clyburn (D-S.C.)—a close ally of the president, whose endorsement right before the South Carolina Democratic primary saved the flagging Biden campaign. In fact, as reported by Bob Woodward and Robert Costa in Peril, the reason that Biden famously promised to put a Black woman on SCOTUS is because Clyburn urged him to do so.
But Judge Childs also has significant weaknesses, which is why I don’t think she’ll be the nominee in the end (unless something goes horribly wrong with Judge Jackson and Justice Kruger). At 55, she’s one of the older possible picks, and this administration favors youth in nominees. And her non-Ivy pedigree could also hurt her: people keep saying they’re tired of Harvard/Yale grads on SCOTUS, but when it comes to doing, Harvard/Yale grads keep getting nominated and confirmed. The last non-Ivy nominee, Judge Amy Coney Barrett, was a former Supreme Court clerk—a SCOTUS clerkship cures all résumé defects—and the last non-Ivy nominee before her was one Harriet Miers. Nuff said. [UPDATE (4:55 p.m.): I now think 10 percent is too low for Judge Childs. A reader has drawn my attention to Rep. Clyburn’s recent claim that “several Republicans,” including Senators Lindsey Graham and Tim Scott of South Carolina, would support Judge Childs as the nominee—and in a 50-50 Senate, that counts for a lot.]
Judge Candace Jackson-Akiwumi: 19-to-1 odds (5 percent)
Age: 42-43 (born 1979)
Current role: Judge, U.S. Court of Appeals for the Seventh Circuit (since July 1, 2021)
Education: Princeton University (A.B.), Yale Law School (J.D.)
Clerkship(s): Judge David Coar (N.D. Ill.), Judge Roger Gregory (4th Cir.)
Senate vote history: 53-40
ABA rating: Majority Well Qualified, Minority Qualified
Like Judge Jackson, Judge Jackson-Akiwumi has the advantage of having just gone through the nomination and confirmation process and winning 53 votes, including those of Senators Collins, Graham, and Murkowski. She has experience as a federal defender, which the left might like, and as a law firm partner (at Zuckerman Spaeder), which the right might like. Since she was born in 1979, she’s in her early 40s—impressively young.
But Judge Jackson-Akiwumi’s relative youth also weighs against her. She graduated from law school in 2005, which means she has fewer years of legal experience than her rivals, and she’s been a judge for less than a year. My guess is that now is not her time—but keep an eye on her for the future.
Vice President Kamala Harris: 19-to-1 odds (5 percent)
Age: 57 (born October 20, 1964)
Current role: Vice President of the United States (since January 20, 2021)
Education: Howard University (B.A.), UC Hastings (J.D.)
Senate vote history: N/A
ABA rating: N/A
How do you solve a problem like Kamala? Her tanking approval ratings and claims that her operation is a “s**t show” have made some observers wonder whether she would hurt President Biden’s reelection prospects if she’s his 2024 running mate. But ditching Harris outright would look bad, a confession of error—so what to do? Put her on the Supreme Court!
In the abstract, it’s not crazy. Harris is, after all, the former attorney general of the nation’s biggest state, and back in 2012, Tom Goldstein of SCOTUSblog declared her to be “the ideal nominee” for President Obama’s second term. And people always love complaining about how the modern Supreme Court sorely lacks justices with political experience—especially compared to the Court of decades past, when you had justices who were former governors (Earl Warren and Charles Evans Hughes), senators (Hugo Black and Salmon Chase), and even a president (William Howard Taft).
As a practical matter, though, it’s surely not happening (assuming Harris is even interested; my guess is she prefers politics to the monastic life of an appellate judge). What happens if the Senate is tied? Even if Harris would be able to break the tie, the optics of that aren’t great. And then Biden would have to pick a new vice president, which would be a big hassle.
There’s a reason why the folks who seem the most excited by the prospect of a Harris nomination are Fox News pundits; my giving her a 5 percent shot is being generous. But I put her on this list because, well, writers are suckers for fun plot twists—and nominating the Veep sounds like something out of Veep.
The field: 9-to-1 odds (10 percent)
There are some interesting and impressive lawyers and judges whose names are being bandied about as possible SCOTUS nominees. The judges include Judge Holly Thomas, a California state-court judge who was just confirmed to the Ninth Circuit; Judge Tiffany Cunningham, confirmed last year to the Federal Circuit; Judge Leslie Abrams Gardner, a federal trial judge in Georgia (and sister of Stacey Abrams); Judge Wilhelmina Wright, a federal trial judge in Minnesota (and a favorite of Senator Amy Klobuchar); and Justice Anita Earls of North Carolina (mentioned by Jake Tapper—but note that she turns 62 next month). The buzz-generating lawyers are a leading litigator and an academic superstar: Sherrilyn Ifill, outgoing president and director-counsel of the NAACP Legal Defense and Educational Fund, and Professor Melissa Murray, the Stokes Professor of Law at NYU Law School, respectively.
But the SCOTUS nomination process loves predictability, and surprise nominees—cough cough, Harriet Miers—don’t always go over well. So I’d be shocked if the pick isn’t Judge Jackson, Justice Kruger, or Judge Childs.
As between the three of them, who do I think will get the nod? Let’s look at recent history.
The current situation reminds me of 2009, when Justice Sonia Sotomayor was picked to replace Justice David Souter, and 2010, when Justice Kagan was picked to replace Justice John Paul Stevens. The top contenders for the 2009-2010 vacancies—then-Judge Sotomayor (2d Cir.), then-Solicitor General Kagan, and Judge Diane Wood (7th Cir.)—bear striking professional resemblances to the top contenders today—Judge Jackson, Justice Kruger, and Judge Childs, respectively.
Consider the similarities in the scenarios between 2009-2010 and 2022:
An older, white male justice from the liberal wing of SCOTUS (Souter/Breyer) announces his retirement from the Court in the middle of a Term, to take effect at the end of the Term, with his successor to be picked by a Democratic president (Obama/Biden).
The president zeroes in on three top contenders, all women with impeccable credentials:
(a) a long-serving judge (Sotomayor/Jackson) with trial and appellate experience, an Ivy League background, liberal views, and a clear constituency that would be excited about her (the Latinx community/progressives);
(b) a younger candidate with an Ivy League background but more moderate views, experience in the Solicitor General’s office, a less obvious constituency, and a razor-sharp legal mind (Kagan/Kruger); and
(c) a well-respected, older judge—the oldest of the three—who hails from a more “heartland-y” part of the country and boasts a non-Ivy background (Childs/Wood).
For the first vacancy, the president goes with candidate (a)—partly for the political benefits of exciting a clear constituency, and partly because he knows that candidate (b) still has several more years of viability as a SCOTUS candidate, thanks to her youth.
For the second vacancy, the president circles back and picks candidate (b), who is still young enough to be nominated. Alas, poor candidate (c) never gets nominated.
Will history repeat itself? I currently predict that it will, meaning that President Biden will nominate Judge Jackson, hold Justice Kruger “in reserve,” and pass over Judge Childs. Biden promised to name the first Black woman to SCOTUS, but there’s no reason he can’t appoint two—especially if two of the strongest nominees both happen to be Black women.
The big question, of course, is whether Biden will get a second SCOTUS pick—or whether Justice Kruger will have to content herself with being Justice Kruger of the California rather than U.S. Supreme Court. The big difference between 2009 and 2022 is that today there’s no sitting justice who might retire next year and allow a Democratic president to pick his successor. The two oldest justices—Justice Clarence Thomas, 73, and Justice Samuel Alito, 71—are the two most opposed to letting President Biden replace them.
So those are my thoughts on who is most likely to get the SCOTUS nod. What are your predictions? Please feel free to share them in the comments to this post.
UPDATE (2/25/2022, 11:25 a.m.): As predicted in this post, President Biden has selected Judge Ketanji Brown Jackson as his Supreme Court nominee.
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Judge Wood didn’t graduate from the Ivy League, but she still has an elite educational and professional background. She graduated from the University of Texas at Austin (for college and law school), clerked for Justice Harry Blackmun on the Supreme Court, and was a law professor at the University of Chicago before taking the bench.
If Jackson is nominated, does Biden nominate Kruger to the open DC Circuit seat? Janice Rogers Brown left the California Supreme Court for the DC Circuit when nominated by George W. Bush and confirmed by the Senate in 2005.
I would add the Honorable Denise Jefferson Casper to the list included in the "field." Judge Casper was Wesleyan '90, Harvard Law '94. She has been a District Court judge in the District of Massachusetts since 2010. She is a former AUSA and Middlesex County ADA. She presided over the trial of Whitey Bulger.