President Biden's Supreme Court Nominee Will Be....
Here are updated odds that reflect the current state of play.
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Two weeks have passed since Justice Stephen Breyer announced his retirement from the Supreme Court—and two weeks is an eternity in both the news cycle and inside the Beltway. A great deal can happen in two weeks. So what’s new when it comes to selecting and confirming President Joe Biden’s likely SCOTUS nominee?
Quite a lot. For starters, we now know who will be leading the confirmation effort on behalf of the White House: former senator Doug Jones (D-Ala.), joined by Minyon Moore and Ben LaBolt, alumni of the Clinton and Obama White Houses, respectively.
And although interviews haven’t started yet, per CNN, we have a much clearer sense of the shape of the race. It looks like it’s between two contenders, Judge Ketanji Brown Jackson of the D.C. Circuit and Judge J. Michelle Childs of the District of South Carolina—with Judge Jackson as the heavy favorite. As promised, here are some updated odds.
Judge Ketanji Brown Jackson: 1-to-4 odds on (80 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
Over the past two weeks, Judge Jackson has emerged as the frontrunner—by far. I don’t know that her chances are as high as 95 percent, which is the estimate of Ed Whelan over at the National Review, but they’re exceedingly high. As Jeff Hauser—founder and director of the Revolving Door Project, and a well-connected figure in progressive circles—told me, “The longstanding assumption is that Judge Jackson will get the nomination, and nothing I’m hearing suggests it will be anyone else.”
Perhaps responding to critics who noted that she had not yet published an opinion since joining the D.C. Circuit last June, Judge Jackson issued not one but two opinions last week, in American Federation of Government Employees v. FLRA and Wye Oak Technology, Inc. v. Republic of Iraq. Her first opinion, AFGE v. FLRA, was praised by legal writing expert Ross Guberman as “stellar,” while Mark Joseph Stern of Slate commended it as “a lucid, concise opinion” and “an unqualified win to union rights.”
I couldn’t help noticing something that Professor Jonathan Adler also pointed out: Judge Jackson’s pro-union opinion just happened to appear right as her main competition, Judge Childs, was getting attacked on the left for being “insufficiently pro-union” and “too sympathetic to employers.” A mere coincidence—or a shot across Judge Childs’s bow? I love imagining Judge Jackson hitting “send” on the email ordering publication of AFGE v. FLRA, rubbing her hands with glee, cackling maniacally at her computer screen, and saying out loud, “Your move, Michelle!”1
Favorable coverage of her first opinion wasn’t the only positive press for Judge Jackson. She was also the subject of two glowing articles, in the Washington Post and the New York Times, about how she witnessed the harshness of the criminal-justice system firsthand when her uncle was sentenced to life imprisonment for a nonviolent drug crime—and how she came to his aid.
In 2005, while imprisoned, Thomas Brown Jr. reached out to his niece—Ketanji Brown Jackson, at the time a federal public defender—for help. She referred his case to the powerhouse law firm of WilmerHale, which succeeding in getting President Barack Obama to commute Brown’s sentence. Then a few years later, Jackson served on the U.S. Sentencing Commission, where she brought about positive change on a more systemic level by helping to rewrite the sentencing guidelines and make them less punitive for drug-related offenses.
Criminal justice is an important issue for the left, which is why Judge Jackson’s background as a public defender and work on sentencing reform has made her a darling of progressives. The Post and Times articles underscored how committed she has been to criminal-justice reform—and they just happened to appear right around the time that Judge Childs was getting criticized by the American Prospect, a leading publication on the left, for “punitive” criminal justice rulings that were “repeatedly overturned.”
Although Judge Jackson didn’t comment on the record to the Post or the Times, the articles about her uncle have enough personal detail to suggest that friends or supporters of hers worked with the reporters. And I couldn’t help noticing the final sentence of Alexander Sammon’s American Prospect piece criticizing Judge Childs on criminal justice issues: “Childs’s record… is not shared by other front-runners: Ketanji Brown Jackson, for instance, was a former public defender and sentencing commission vice chair.”
Was the nearly simultaneous publication of Washington Post, New York Times, and American Prospect articles, praising Judge Jackson in two areas of weakness for Judge Childs, mere coincidence? Or might it have been the product of shrewd strategy by Jackson surrogates?
Knowing how enthusiasm can cause advocates of SCOTUS shortlisters to do all sorts of things—like rewrite Wikipedia bios—I wouldn’t be surprised if this media blitz was a concerted effort by #TeamJackson. She and many of her supporters, including former clerks, are longtime D.C. denizens who are experienced in the ways of Washington. They know how the game is played—and right now, they’re playing it much better than anyone else, which explains why Judge Jackson is even more heavily favored now than she was right out of the gate.
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.), Duke University School of Law (LL.M.)
Senate vote history: Voice Vote
ABA rating: Well Qualified (for D.S.C.; D.C. Circuit rating pending)
I still have Judge Childs’s chances of getting the nomination at 10 percent. But because of how the rest of the field has basically evaporated, she’s now the clear top alternative to Judge Jackson—pulling ahead of Justice Leondra Kruger of the California Supreme Court, who was initially viewed as Judge Jackson’s principal rival.
What explains the ascendancy of Judge Childs? Two words: Jim Clyburn. Representative Clyburn (D-S.C.), currently serving as House majority whip, is one of the most powerful members of Congress—and he also carries great sway with the Biden Administration, thanks to how he rescued the Biden presidential campaign when it looked like all was lost. And Congressman Clyburn has been openly advocating for Judge Childs to become Justice Childs; in fact, she’s the only shortlister that the White House has publicly confirmed is under consideration.
Let’s start with the case for Judge Childs. First, Judge Childs has excellent credentials and experience, including time in private practice, service in state government, and 16 years of experience as both a federal and state trial judge. Yes, as noted by Greg Stohr of Bloomberg Law, she has never served on a federal appeals court—her D.C. Circuit nomination is on hold right now, for obvious reasons—and the last time a district judge went straight to SCOTUS was 1923. But she has such deep judicial experience, including appellate experience from occasionally sitting by designation on the South Carolina Supreme Court, that I don’t see this as a dealbreaker. After all, there’s no shortage of former appellate judges at SCOTUS—but the Court could certainly benefit from a member with trial-court experience (in addition to Judge Sonia Sotomayor).
Second, Judge Childs has a compelling personal story and a non-Ivy-League educational background. As noted by Representative Clyburn, Childs was raised by a single mother, after her father, a police officer, was killed in the line of duty. She excelled academically at two public universities, the University of South Florida (B.A.) and the University of South Carolina (M.A. and J.D.), and she also holds an LL.M. in Judicial Studies from Duke. She has strong but non-Ivy credentials, a plus in our populist age and in light of the fact that eight out of the nine current justices graduated from either Harvard Law or Yale Law. As noted by Amy Howe of SCOTUSblog, supporters of Childs “say that her educational background makes her better able to relate to ordinary people—a trait that might appeal to Biden, who graduated from the University of Delaware before attending law school at Syracuse.”
Third, Judge Childs is probably the most confirmable of the three top contenders.2 In a 50-50 Senate, with one Democratic senator temporarily unavailable—Senator Ben Ray Luján recently suffered a stroke, and he won’t be back for at least several weeks—confirmability matters.
It’s true that Judge Childs doesn’t have a recent confirmation under her robe, à la Judge Jackson, confirmed to the D.C. Circuit last year. But Childs was confirmed to the district court by voice vote, and South Carolina’s two Republican senators, Lindsey Graham and Tim Scott, have said very nice things about her, suggesting that they’d support her as nominee. And it would make sense for them to support her, for several reasons: she’s a fellow South Carolinian; she’s likely to be more conservative on the Court than the other top contender, Judge Jackson; and since she’d be replacing Justice Breyer, she wouldn’t change the ideological balance of the 6-3 Court anyway.
If Senators Graham and Scott support Judge Childs, I have a hard time imagining senators like Susan Collins, Lisa Murkowski, or Mitt Romney voting against her. So I agree with Senator Graham’s prediction that Childs could garner more than 60 votes (perhaps with a line-up similar to the 63 senators who voted to confirm Judge Tiffany Cunningham to the Federal Circuit). If President Biden is looking for a strongly bipartisan vote—lowering the temperature of the political climate, while raising his sagging approval ratings—Judge Childs is probably his best bet.
Now let’s turn to the negatives, which are significant. This post is predictive—who will get the nomination, not who should—but normative considerations obviously inform the predictions.
First, on the brink of turning 56 (on March 24), Judge Childs is the oldest of the top contenders—right up against what’s conventionally regarded as the upper limit for SCOTUS nominees these days. If confirmed, she’d be the oldest justice to be appointed to the Court since President Bill Clinton appointed Justice Ruth Bader Ginsburg in 1993, when she was 60 (and since RBG’s appointment, both parties have become much more youth-focused).
Second, Judge Childs’s credentials aren’t quite as strong as Judge Jackson’s, at least by conventional SCOTUS standards (which we can debate, but that’s an argument for another day). In addition to not graduating from an elite college or law school, Childs never clerked, worked at an Am Law 100 firm, or served on the U.S. Sentencing Commission. (Yes, Justice Barrett didn’t graduate from Harvard or Yale either, but she clerked for SCOTUS—a credential that many a Harvard or Yale grad would kill for.)3
Third, I think Congressman Clyburn’s aggressive campaign in favor of Judge Childs might have backfired. As Annie Karni puts it in the New York Times, his advocacy for Childs “is a blatant effort to call in a political favor in the form of a lifetime appointment to the nation’s highest court,” which has “irk[ed] some of the president’s allies in the process.” And thanks to Clyburn’s extremely public push for Childs, Biden’s ultimate selection of her might be viewed as repaying a political favor instead of picking the best nominee on the shortlist. In other words, Clyburn has actually made it harder in some ways for Biden to go with Childs.
Finally, and perhaps most importantly, picking Judge Childs will cause problems for President Biden with the left wing of his party. Right now, given his diminished political standing, he can’t afford that—which is why I don’t think he’ll go with her in the end.4
Many progressives already view southerners like Judge Childs as more conservative than folks from other parts of the country. The fact that Senators Graham and Scott strongly support Judge Childs makes progressives even more nervous: what do they know about her that we don’t? And her history of harsh rulings in criminal cases, discussed above, raises concerns about her reliability on criminal-justice issues.
But Judge Childs’s most prominent problem on the left is her support—or lack thereof—from organized labor. In an article by Jeff Stein and Seung Min Kim for the Washington Post, prominent labor leaders like David Borer, general counsel of the American Federation of Government Employees, and Sara Nelson, president of the Association of Flight Attendants, criticized Childs’s record on labor and employment issues. They did so publicly—which means that there are many other labor leaders who are privately communicating similar concerns to the White House.
For chapter and verse on why Judge Childs has labor organizations deeply concerned, see Alexander Sammon’s American Prospect article. From 1992 to 2000, Childs worked as an associate and then partner at Nexsen Pruet, an NLJ 500 firm and the second-largest law firm in South Carolina. She focused on employment law—and as you’d expect from a Biglaw partner, most of her work involved defending employers against claims of race-, sex-, and pregnancy-based discrimination.
In the words of David Boren, general counsel of AFGE—yes, the same AFGE that Judge Jackson just ruled in favor of—Judge Childs “comes from an anti-union law firm where she spent time defending employers from claims of civil rights and labor law violations. That’s not what we need.” This might explain why prominent liberals and progressives like Senators Elizabeth Warren (D-Mass.) and Bernie Sanders (D-Vt.) seem less than enthused by the idea of Justice Childs.
To be sure, if Judge Childs is the nominee, Democrats will rally around her, and she’ll get confirmed with all (or almost all) of their votes. Indeed, Black female lawmakers are already working behind the scenes to minimize infighting over the pick and ensure that the eventual nominee enjoys strong and unified support. But it’s still the case that by picking and pushing Childs, President Biden will be spending at least some political capital with progressives—instead of earning it, which picking someone like Judge Jackson would do.
“President Biden has only a certain amount of political capital for keeping his party united,” Jeff Hauser of the Revolving Door Project told me. “If he needlessly angers progressives on his SCOTUS pick, that could create all sorts of problems for him down the line.”
I asked Hauser: what about the idea of President Biden being conciliatory toward Republicans? Might nominating Judge Childs, then getting her confirmed with bipartisan support—more than 60 votes, a feat no SCOTUS nominee has achieved since Justice Elena Kagan back in 2010—build goodwill on the other side of the aisle?
“The Biden Administration has not prosecuted Donald Trump, even though the entire Trump family should be in prison,” Hauser said. “How much more conciliatory do you want? This whole idea of ‘if only Democrats play nicer, Republicans will be nice back,’ is ridiculous. It’s just like Lucy, Charlie Brown, and the football.”
Justice Leondra Kruger: 19-to-1 odds (5 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
Justice Kruger is still in the mix, but her prospects are significantly diminished. The positive factors I previously identified are still present, but the past two weeks have demonstrated a core weakness I also mentioned: unlike Judge Jackson, who has progressives, and Judge Childs, who has Jim Clyburn, Kruger lacks a clear constituency that’s pushing for her (and no, Ed Whelan doesn’t count).
Justice Kruger’s record on the California Supreme Court is too moderate for many progressives. Meanwhile, many conservatives have problems with the position she advocated before SCOTUS in the Hosanna-Tabor case, which they see as reflecting possible hostility to organized religion. And she doesn’t have a prominent politician like Clyburn in her corner.
Finally, her youth, normally a plus for a SCOTUS pick, has given rise to a “let’s save her for later” mindset (à la Justice Barrett with the seat that went to Justice Brett Kavanaugh). Justice Kruger is only 45. Let’s say President Biden doesn’t get another SCOTUS pick, we have a President Ron DeSantis (or God forbid President Donald Trump), and then a Democrat retakes the White House in the 2028 election. In January 2029, the start of this imaginary Democrat’s term, Justice Kruger will be only 53, younger than Judge Childs is today. Since Kruger has another decade or so of viability as a SCOTUS contender, there’s no need to nominate her now.
The field: 19-to-1 odds (5 percent)
The field is now a little bigger than it was in my last analysis, since I’ve folded in two long-shot contenders who previously had their own odds lines, Judge Candace Jackson-Akiwumi (7th Cir.) and Vice President Kamala Harris. But neither has generated much buzz over the past few weeks, and the same is true for the other extremely impressive and eminently qualified possibilities I previously floated, including but not limited to Judge Holly Thomas (9th Cir.), Judge Tiffany Cunningham (Fed. Cir.), Judge Leslie Abrams Gardner (M.D. Ga.), Judge Wilhelmina Wright (D. Minn.), Justice Anita Earls (North Carolina Supreme Court), Sherrilyn Ifill (NAACP), and Professor Melissa Murray (NYU Law).
This deep bench of amazing talent, though, is why I personally don’t have a problem with President Biden limiting his consideration to Black women (even if I, like Ruth Marcus of the Washington Post, might have preferred a less explicit approach). While I have concerns about racial preferences in employment and education, serving as a Supreme Court justice isn’t an ordinary opportunity; no individual, however brilliant, can claim they “deserve” to be on SCOTUS.
A seat on the Supreme Court is a unique opportunity involving a unique selection process, and nominees are picked for all sorts of unique considerations besides their “merit”—including, yes, demographic and political considerations. As we’ve all been endlessly reminded of over the past few weeks, President Ronald Reagan picked Justice Sandra Day O’Connor based partly on her gender, President George H.W. Bush picked Justice Clarence Thomas based partly on his race, and President Donald Trump picked Justice Amy Coney Barrett (as RBG’s successor) based partly on her gender. As long as the president’s pick is qualified—and again, all the individuals I’ve discussed are highly qualified—I’m not losing sleep over his approach.
There are many superb candidates that President Biden can pick as his Supreme Court nominee. But he can pick only one—and in the end, it’s looking like he will pick Judge Ketanji Brown Jackson.
UPDATE (11:11 p.m.): After this post was published, President Biden made some comments about his SCOTUS nominee selection process. He’s less far along than some of us expected, still in the process of reviewing dossiers on the candidates, with interviews to take place next week. He said that he and his team have “done the deep dive” on about four possible nominees so far.
President Biden told Lester Holt of NBC News that (1) he’s “not looking to make an ideological choice here,” and (2) the names on his shortlist “come from the best universities.” Might these comments spell trouble for Judge Jackson and Judge Childs, respectively?
The bottom line: the situation is evolving, and the president’s pick is far from a done deal (even if some might want to portray it as such). Or as I said on Twitter:
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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I have no basis for imagining this scene of Judge Jackson cackling maniacally; I’m just a huge drama queen. Timing the publication of a popular opinion to advance one’s SCOTUS chances sounds like something straight out of a novel—specifically, my novel, Supreme Ambitions (Chapters 34-38, in case you’re curious).
There are different ways of thinking about confirmability. Supporters of Judge Jackson argue that she’s the most confirmable because, as Tom Goldstein of SCOTUSblog told Bloomberg Law, “she’s the most recently confirmed.” But supporters of Judge Childs maintain that she’s the most confirmable because she has the greatest potential to secure the most Republican votes. I see merit to both views: I believe Judge Jackson can get confirmed (and maybe that’s all that matters at the end of the day), but I also think Judge Childs would enjoy a more comfortable margin of victory.
Some folks who have compared the credentials of the Black women on the Biden shortlist have been criticized as sexist or racist for somehow calling their qualifications into question. I have two things to say in my preemptive defense.
First, I believe—and have repeatedly written—that all of the nominees I’ve heard mentioned are incredibly qualified to sit on the Supreme Court. To say that one (incredibly qualified) nominee is more impressive than another (incredibly qualified) nominee, along one particular dimension (such as writing), does not involve calling into question the overall qualifications of either (incredibly qualified) nominee. For example, opining that you prefer the writing style of Justice Kruger over that of Judge Jackson, while observing that Judge Jackson has stronger criminal-law chops than Justice Kruger, is not calling into question the qualifications of either jurist to sit on SCOTUS. It’s simply comparing the relative strengths and weaknesses of two (incredibly qualified) nominees—which presidents are called upon to do all the time when picking judges and justices.
Second, as those of you who have been reading me for years know well, I compare credentials all the time; it’s one of my shticks. Perhaps most (in)famously, I had a feature at Above the Law called Legal Eagle Wedding Watch, where couples were rated based on their educational pedigrees and a “winner” was crowned each week.
And yes, I have compared the credentials of white-male and Republican SCOTUS nominees as well, ad nauseam. E.g., Judge Thomas Hardiman versus then-Judge Neil Gorsuch (“Both judges have stellar credentials, but Judge Gorsuch’s shine just a little more brightly.”); five frontrunners for Justice Anthony Kennedy’s former SCOTUS seat (weighing such factors as the prestige of their colleges, law schools, and clerkships—which can all be viewed as proxies for their intellects).
It’s interesting how the process of picking a SCOTUS nominee is the mirror image of the process of confirming a nominee, much like a presidential primary is the mirror image of a general election. In the first process, you’re trying to show the members of your own party that you’re ideologically “solid”; in the second process, you’re trying to show the public and Senate that you’re moderate. In the first process, being strongly ideological is a plus; in the second process, it’s a minus.