President Biden's Supreme Court Nominee: The Case For Kruger
Judges Jackson and Childs have gotten more attention, but don't count out Justice Kruger—who might be the president's best bet.
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After my last story on the Supreme Court shortlisters, I received feedback from a number of readers—especially supporters of Justice Leondra Kruger of the California Supreme Court. They assured me that she remains very much in the running—i.e., Judge Ketanji Brown Jackson’s prospects have been greatly exaggerated—and they complained that I didn’t say enough nice things about Justice Kruger.
With your indulgence, here’s an open letter to the Biden Administration from the perspective of #TeamKruger,1 arguing why she should be the nominee. This is not necessarily my personal view, but simply my effort to balance the scales. Because Justice Kruger’s supporters believe I have given her short shrift, and because I’m very sensitive to such criticisms,2 here’s the case in her favor, based on the earful I got from her supporters.
[UPDATE (2:38 p.m.): A quick clarification, inspired by Professor Josh Blackman’s discussion of this post over at the Volokh Conspiracy: this post was not written by Kruger supporters. Instead, it’s what I produced in an effort to channel #TeamKruger, based on my phone calls and email exchanges with them.]
Dear President Joe Biden, Vice President Kamala Harris, White House Chief of Staff Ron Klain, White House Counsel Dana Remus, and all others involved in selecting a Supreme Court nominee to replace Justice Stephen G. Breyer:
Greetings—and congratulations. In a little more than a year, you have appointed an impressive slate of nominees to the federal bench. Your appointees have been very qualified, very young, and very liberal—making clear that you are smarter about the judiciary, and appreciate its importance, more than any Democratic administration in recent memory.3 In short, you treat the courts the way a Republican administration would—and we mean that as high praise.4
In light of the qualities you have sought in lower-court nominees, you should nominate Justice Leondra R. Kruger to the U.S. Supreme Court. She best reflects your strategic priorities when picking judges: qualifications, youth, and ideology.
Before turning to these three factors, let’s talk about two things you should not consider. First, you should not choose a justice based on political favor-trading or political fallout. The Supreme Court is too important an institution for you to pick a justice based on whether it will make Representative Jim Clyburn happy or make progressives unhappy. Your justice will serve for decades, long after you have left office—so you need to adopt long-term thinking and pick the best person for the job, not the pick who will give you a short-term political benefit.
Second, you shouldn’t worry about confirmability. The only thing that matters is whether the nominee can get confirmed. In this case, all three of the top nominees—Judge J. Michelle Childs (D.S.C.), Judge Ketanji Brown Jackson (D.C. Cir.), and Justice Leondra Kruger (California Supreme Court)—are eminently confirmable.
The margin of victory is irrelevant; 50 votes (with VP Harris as tiebreaker) are just as effective as 61 votes at getting someone on SCOTUS, and a justice doesn’t get an extra vote at conference because she got confirmed by a big margin. And much as it pains us to say this, the warm fuzzy glow of a strongly bipartisan vote won’t last even a day—the Republicans won’t give you an iota of credit for it, and neither will the Beltway pundits (whose opinion you shouldn’t care about anyway).
Your job, then, is to pick the best nominee, on the merits, without regard to short-term political considerations. The best nominee is a function of three factors: qualifications, youth, and ideology, the qualities you’ve been (admirably) prioritizing in picking lower-court judges. After reviewing these factors, you’ll see that the best nominee is Justice Kruger.
1. Qualifications. At the outset, we’d like to say that all of the amazing Black women who have been mentioned as possible SCOTUS nominees—not just the three frontrunners, but all the judges, lawyers, and professors whose names have been seriously floated—are highly qualified to sit on the Court. You have an embarrassment of riches when it comes to possible picks.
But just because all of the nominees are highly qualified does not mean they are all equally qualified. In our (admittedly biased) opinion, Justice Kruger is the most qualified.
We cannot speak to the other nominees, not having worked closely with any of them. But we can say, without hesitation, that Justice Kruger is one of the most brilliant legal minds, if not the most brilliant legal mind, we have ever worked with. We have collectively studied and worked at some impressive places—elite law schools, top courts, leading law firms, the U.S. Solicitor General’s Office—so when we say this, it means something. As noted by Amy Howe of SCOTUSblog, Justice Kruger has received high praise from three former solicitors general, from both Democratic and Republican administrations, who have called her “brilliant” (Don Verrilli), an “outstanding lawyer” with “unquestioned integrity” (Paul Clement), and “one of the very best handful of lawyers I've ever worked with” (Neal Katyal).
Justice Kruger is also one of the nicest, kindest, most professional colleagues or bosses we have ever had. Again, we can’t speak to the other contenders—we encourage you to ask around about them—but we know that your investigation into Justice Kruger will yield only praise for her personal qualities.
She is also, despite her manifest genius, one of the most modest, unassuming people you will ever meet. Unlike some of the other nominees, she does not have a small army of operatives, politicians, and pundits pushing for her—and that’s how she wants it. She would be mortified if she knew we were writing this letter to you. But we feel compelled to speak out because the Supreme Court is just too important—and Justice Kruger is just too good.
Qualifications don’t exist in a vacuum; they must be mapped onto the specific role being filled. The Supreme Court is obviously an appellate court, and of the possible nominees—not just the three frontrunners, but all the seriously discussed nominees—Justice Kruger has by far the most extensive, high-level experience as an appellate advocate and appellate judge.
She served for six years in the Office of the Solicitor General, arguing 12 cases before the high court. This means she has argued more cases before the Supreme Court than all of the other shortlisters combined—because, as far as we know, no other shortlister has argued even a single case before SCOTUS. She followed this up with service on the California Supreme Court, the highest court of our nation’s largest state, where she is now entering her eighth year on the bench. No other prospective nominee comes close in terms of the level and quality of her appellate experience.
If you were picking a trial judge, maybe she might not be the best pick. But you’re picking a justice for the highest appellate court in all the land—and for this particular role, Justice Kruger’s credentials and experience are clearly the best match.
2. Youth. This point doesn’t need much elaboration, but Justice Kruger, at 45, is the youngest of the three leading nominees, as well as one of the youngest of all the plausible nominees. Yes, Judges Candace Jackson-Akiwumi (7th Cir.) and Holly Thomas (9th Cir.) are slightly younger—but they’re new to their courts and have hardly any judicial experience, while Justice Kruger has served on the California Supreme Court for more than seven years. Justice Kruger sits at the sweet spot where youth and judicial experience intersect.
The six to ten years separating Justice Kruger and from Judge Jackson, 51, and Judge Childs, 55, might not seem like a lot.5 But as reflected in your super-youthful picks to the lower courts, you understand—far better than past Democratic administrations—that seemingly small differences in age reverberate powerfully throughout jurisprudence. As Amy Howe of SCOTUSblog points out, Justice Kruger would be “the youngest justice by over four years, and the youngest justice confirmed since Clarence Thomas joined the court in 1991 at age 43.”
Think about how Justice Thomas has been sitting on the Supreme Court, casting vote after vote for conservatives, for more than three decades. And now imagine Justice Kruger doing the same thing for liberals—maybe for even longer, given her excellent health and women’s longer life expectancy. Doesn’t that image warm your heart?
3. Ideology. In a recent interview with Lester Holt of NBC News, President Biden stated that he is “not looking to make an ideological choice here.” We agree that ideology is the least important of the considerations, as long as the appointee will vote with the liberal wing in critical cases, just as Justice Breyer did.
Any of the prospective nominees, on both the “short shortlist” and the “long shortlist,” would pass this test. Although she has occasionally voted with conservatives in less important cases, Justice Kruger has been a solid liberal on the California Supreme Court, especially in the critical cases, and she would be the same on the U.S. Supreme Court.
Progressives pushing Judge Jackson argue that she’s significantly to the left of Judge Childs and Justice Kruger—and that’s probably true. But is that an advantage?
Just as the nominee’s qualifications must match the job, the nominee’s ideology must match the job—so let’s consider the job. It’s not “Associate Justice of the Supreme Court” in a vacuum, but “Liberal Supreme Court Justice on a 6-3, Conservative-Dominated Court.”
If this were a 6-3 Court in the other direction, i.e., in favor of liberals, Judge Childs might be a great pick. With that kind of dominance, you’d have the luxury of picking someone based on such niceties as a compelling personal story and a non-Ivy educational background, and things like her lack of appellate experience, her being a decade older, and her conservatism in employment law and criminal law wouldn’t matter that much. You could lose her vote in the occasional case and still prevail.
If this were a 5-4 Court in favor of liberals, Judge Jackson would be a fine choice. She would be a powerful voice on the left—à la Justice Sonia Sotomayor, whom many progressives regard as “the conscience of the Court”—and by staking out the far left, she might tug the entire Court leftward and make the other liberals look more moderate.
But we don’t have a 6-3 or even 5-4 Court in favor of the liberals. Instead, we have a 6-3 Court dominated by conservatives. And this calls for an entirely different type of justice, with an entirely different ideological bent.
When you’re in the minority to that degree, you don’t want an ideological bomb-thrower; you want a bridge-builder. You don’t want a hard-core liberal or progressive; she doesn’t have the votes to advance her views anyway, and her left-wing views might just alienate her more conservative colleagues.
Instead, you want a judge who understands conservatives and has respect from conservatives. You want a judge who can occasionally persuade a conservative or two to join a moderate or even liberal position, through the strength of her reasoning, the power of her writing, and the charm of her personality. Based on her track record at the California Supreme Court, where she has demonstrated her talent for building consensus and coalitions, Justice Kruger is the one that you want.6
You want a judge who understands the subtle strategic aspects of serving on a sizable appellate court. On occasion, and especially when the court is dominated by the other side, this might require “damage control”—e.g., cobbling together a narrow majority for a position that you don’t love, but one that’s better than the alternative. This is also something that Justice Kruger understands, since for the first five years of her seven years on the California Supreme Court, Republican appointees outnumbered Democratic ones, 4-3.
Is it possible that Judge Jackson and Judge Childs might excel at this as well? Sure. But Justice Kruger has already demonstrated this ability—you don’t need to speculate—and she has far more experience and practice at it. Serving on a seven-member appellate court of last resort, where her side has been outnumbered for most of her tenure, has allowed Justice Kruger to develop the precise skill set she would need at SCOTUS in the year 2022.
Judge Jackson, who has been an appellate judge for less than a year, and Judge Childs, who has never been an appellate judge, haven’t had the opportunity to develop these skills in the same way. And the Supreme Court—at least for a liberal justice at this critical point in our nation’s history, with abortion, gun control, and affirmative action on the line—is no place for learning on the job.
Over the past few weeks, there has been a lot of Beltway bloviating about whom you should nominate to the Supreme Court, taking into account all sorts of complex calculations. We have great respect for all the nominees whose names have been mentioned, and they are all extremely qualified for the Court.
But at the end of the day, your task is quite simple: pick the very best, most qualified jurist for the job. Based on her superlative credentials, on-point appellate experience, youth, and history of building coalitions across ideological lines, we are confident that Justice Leondra Kruger is that person.
Sincerely yours,
#TeamKruger
UPDATE (11:58 a.m.): Some alternatives to #TeamKruger:
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To preserve my sources’ anonymity—I heard more than once that “this isn’t Justice Kruger’s style” and “she wouldn’t want me talking to you”—I’m writing this post from a collective #TeamKruger perspective, rather than identifying which comments came from a former clerk, a former colleague, a college or law school classmate, etc.
For examples of past situations when I was told I was being too negative about a candidate for a top legal job and I responded by publishing an entire post of praise for that person, see here and here. Although I’m not a straight-news reporter (or a straight news-reporter), and I don’t claim to be “objective”—readers subscribe to this newsletter because they want opinions and analysis, not just reporting—I try hard to be fair-minded and to air a wide range of perspectives.
The Biden Administration’s focus on judicial nominations and understanding of the importance of the courts should not be surprising. President Biden is a lawyer and former chairman of the Senate Judiciary Committee; his Chief of Staff, Ron Klain, is a lawyer and former Supreme Court clerk; and his White House Counsel, Dana Remus, is also a former SCOTUS clerk. These are folks who understand the importance of the judicial branch, especially the Supreme Court, and don’t see it as an afterthought.
One quibble: a Republican administration would have announced its nominee by now. President Donald Trump announced Justice Amy Coney Barrett as his nominee about a week after Justice Ruth Bader Ginsburg’s passing. Justice Breyer’s retirement became public on January 26; it’s now three weeks later, and we haven’t even heard about President Biden interviewing anyone yet.
Although ten years, when it comes to judicial nominees, is kinda a lot….
Put another way, for this particular vacancy you want a Justice Elena Kagan, not a Justice Sonia Sotomayor. For more on why Justice Kruger is the most Kagan-esque of the contenders, see the last few paragraphs of my earlier story, Handicapping President Biden's Supreme Court Shortlist.
Bravo!
"We don't care about ideology so long as she votes the right way" isn't exactly consistent with the rule of law.