Date: January 31st, 2022 3:34 PM
Author: L'uomo pumo
https://www.washingtonpost.com/opinions/2022/01/31/11-likeliest-people-get-bidens-supreme-court-nomination/
At last, President Biden has a chance to atone for his
mistreatment of Anita Hill. Three decades after Justice Clarence
Thomas’s confirmation hearings, the president could put the first
African American woman on the Supreme Court. He vowed Thursday to keep
his campaign promise to nominate a Black woman after Justice Stephen G.
Breyer, 83, announced plans to retire when the court’s term ends this
summer.
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Biden, 79, is an old man in a young country. Of the 115 justices
to serve on the Supreme Court, 16 have been confirmed since Biden was
elected to the Senate half a century ago. Assuming Democrats can confirm
his nominee through a 50-50 Senate, Biden is poised to select just the
third African American and sixth woman ever to serve.
The president hopes to announce his choice by the end of
February. Sadly, relatively few Black women serve as federal appellate
judges, which has been the traditional pipeline for justices. (Biden has
nominated eight Black women to circuit courts since taking office, and
five have been confirmed.) “But he does not believe that is a
prerequisite,” White House press secretary Jen Psaki said Thursday.
Because this nominee will not tip the balance of power on a
court that conservatives dominate 6-to-3, the confirmation fight might
not be as scorched-earth as we’ve come to expect. But this is an
election year, and control of the Senate is on the line in the midterms.
Biden wants to galvanize his base, but he does not want to pick someone
who won’t get the backing of moderate senators in his own party from
West Virginia and Arizona.
With all that in mind, we asked some of our pundits to rank who they think Biden is most likely to select…
— James Hohmann
1
D.C. Circuit Judge Ketanji Brown Jackson
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Then-U.S. District Judge Ketanji Brown Jackson, right, speaks to
students after a mock trial in D.C. on Dec. 14, 2017. (Michael Robinson
Chavez/The Washington Post)
Black women have been shut out for so long that there is an
embarrassment of riches to choose from. All of the women listed here are
at least as qualified as the 108 White men who have been appointed to
the court. Honestly, I could come up with the names of 40 Black women as
easily as four.
First among them, though, is Ketanji Brown Jackson. Her résumé
is from central casting: double-Harvard, both undergrad and law degrees
with honors. Clerked for Breyer, the justice she would replace. The left
loves that she’s a former public defender. The right might be impressed
that former House speaker Paul D. Ryan is a fan (as well as her
relative by marriage). This is a no-brainer. Let’s fast-forward to who
plays Jackson in the inevitable biopic about the first Black woman to
serve on the Supreme Court. — Paul Butler
++
Sitting now on the U.S. Court of Appeals for the D.C. Circuit, a
traditional feeder for the Supreme Court, Jackson has the inside track.
She drew unanimous support from Democrats and three GOP members in her
circuit court confirmation. With top-flight academic qualifications and
decades ahead to serve on the high court (she’s only 51!), she has to be
the overwhelming favorite. — Jennifer Rubin
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Jackson is the most conventional and obvious choice, and Biden
usually settles on the most conventional and obvious choice when making
major decisions such as this. Jackson filled Merrick Garland’s seat on
the D.C. Circuit, the second-most-powerful court in the country, after
he stepped down last year to become attorney general. Some prominent
Democratic insiders encouraged President Barack Obama to pick Jackson
instead of Garland after Justice Antonin Scalia’s death in 2016 on the
belief that Republican obstruction of a Black woman would have been more
untenable. We’ll never know whether they were right.
There’s some nice symmetry to Jackson’s Breyer clerkship, too:
Brett M. Kavanaugh clerked for Anthony M. Kennedy, whom he replaced in
2018, and John G. Roberts clerked for William H. Rehnquist, whom he
succeeded as chief justice. Both Kavanaugh and Roberts were also
elevated from the D.C. Circuit. — James Hohmann
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Like every other court-watcher (and every pundit here!), I fully
expect Biden to nominate Jackson to replace Breyer because, well, the
D.C. Circuit has been the default launch platform for five decades for
the Supreme Court. Her confirmation would be swift, and though a number
of Republican senators will oppose her because of her judicial
philosophy, there will also be a sizable number of GOPers who believe a
president early in his second year of a term has wide discretion when it
comes to court nominees. — Hugh Hewitt
2
California Supreme Court Justice Leondra Kruger
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If for any reason there is some sort of personal disconnect
between the president and Jackson, then California Supreme Court
Associate Justice Leondra Kruger is the next most obvious choice (and at
45 years old, the one who would probably be the last of the
reconstituted nine to retire if God is good and the actuarial tables
sound). — Hugh Hewitt
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As a judge on the California Supreme Court, she would follow
other famous justices who came to the high court without federal court
experience, including Rehnquist. Considered a “moderate” or
incrementalist, she might attract more Republican support. Her wide
experience as a principal acting deputy solicitor general and deputy
assistant attorney general in the Office of Legal Counsel round out her
impressive résumé. — Jennifer Rubin
++
Kruger is definitely where Biden will end up if he decides he
needs a more middle-of-the-road pick. She turned down entreaties last
year to become the administration’s solicitor general, but it’s hard to
imagine the White House holds that against her. Plus, Justice Elena
Kagan is reportedly a fan.
Some might say 45 is too young, but Clarence Thomas was only 43
when President George H.W. Bush nominated him in 1991. And President
Ronald Reagan also turned to state courts in 1981 when he picked Arizona
Supreme Court Justice Sandra Day O’Connor to be the first female
justice — something he had promised to do during the campaign — because
there was not a large bench of female federal judges. — James Hohmann
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Like Jackson, Kruger is a straight-up brainiac; she even served
as editor in chief of the Yale Law Journal, the nation’s most
prestigious law review. Also like Jackson, Kruger is one of a small
number of Black women to have clerked for a Supreme Court justice — in
her case, John Paul Stevens. (How lovely it would be to have a Ruth
Bader Ginsburg clerk in the mix, but Ginsburg never hired a Black female
law clerk … though that’s another op-ed.)
But Kruger’s judicial restraint is a flaw, not a feature. She is
simply too moderate for this moment and this court, especially on
criminal cases. According to the New York Times, Kruger likes being
described as “cautious and deliberate.” That’s the opposite of the
court’s right-wing ideologues, and it’s high time progressives learned
to fight fire with fire. — Paul Butler
3
U.S. District Judge J. Michelle Childs
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In this gravity-defying mix, Childs’s main claims to fame are
that she didn’t go to an Ivy League school and that House Majority Whip
James E. Clyburn (D-S.C.) is pushing her. But Childs’s résumé, glittery
as it is, isn’t as spectacular as Jackson’s or Kruger’s. Plus Childs’s
lack of national exposure and a lengthy paper trail make her more of a
risk. Congressman Clyburn, the president will have to catch you later. —
Paul Butler
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Clyburn arguably saved Biden’s presidential run with his
endorsement before the South Carolina primary, so the fact that Childs,
55, comes highly recommended from him has to carry some real weight.
She’s currently a federal district court judge in South Carolina, and as
Clyburn has pointed out, she has been a state court judge, too. And as a
graduate of a public law school, yes, she’d further weaken the Ivy
League stranglehold on the court. — Jennifer Rubin
++
Does Biden feel he has to give something to Clyburn and the
Congressional Black Caucus? If so, Childs is the choice. She has been a
district court judge in Clyburn’s home state for a decade, and Biden
nominated her recently for the D.C. Circuit. Her confirmation hearing
this week for that job will be worth watching, to see both how she
handles the klieg lights and how well she responds to GOP questioning.
(Clyburn claims both of South Carolina’s Republican senators would
support her.)
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Childs’s boosters spin the fact that she went to state schools
in Florida and South Carolina as an asset — but that’s not new.
Republicans also touted it about Justice Amy Coney Barrett, who went to
(private) schools in Tennessee and Indiana. Biden also didn’t attend
top-tier schools and bragged about this on the campaign trail. — James
Hohmann
4
7th Circuit Judge Candace Rae Jackson-Akiwumi
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She sits on the U.S. Court of Appeals for the 7th Circuit but
has served for less than a year as a federal judge. In her favor: Biden
has championed a number of lower-level federal court nominees with
public defender experience. — Jennifer Rubin
++
Sen. Richard J. Durbin (D-Ill.) chairs the Judiciary Committee,
and he was a big backer of Jackson-Akiwumi when Biden nominated her for
the 7th Circuit. She’s still green, but her public defender chops and
Princeton/Yale résumé (along with the support of Durbin) would make her a
young, appealing justice. — Hugh Hewitt
5
Delaware Supreme Court Justice Tamika Montgomery-Reeves
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What if the president likes a surprise? He could be listening to
his Delaware pal and Senate Judiciary Committee member Chris Coons,
talking about their fellow Delawarean, Delaware Supreme Court Associate
Justice Tamika Montgomery-Reeves. Reeves is another candidate who would
break the Ivy League barrier, and she would be doing a solid for the
First State, which has never boasted a Supreme Court justice. — Hugh
Hewitt
6
NAACP Legal Defense and Educational Fund President Sherrilyn Ifill
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Full disclosure: I have know Ifill since we were law students in
the 1980s. As America has learned during her high-profile tenure as
head of the NAACP Legal Defense and Educational Fund, to know Ifill is
to love her. She is crazy smart, mad funny, one of the most charismatic
and empathetic people in public life and a brilliant legal strategist.
Of all of the names in play, Ifill would be the best at the most
important work any justice appointed by a Democratic president will have
for the next 20 or 30 years: writing dissents. But you don’t run the
nation’s preeminent public interest law firm without making some
enemies, especially among Senate Republicans, so Ifill might have the
toughest confirmation battle of any of the contenders. — Paul Butler
Ifill just announced her retirement from leading the NAACP Legal
Defense and Educational Fund. Her advocacy on voting rights and
judicial reform would delight progressives and absolutely wig out the
GOP. Without judicial experience, she remains a long shot. — Jennifer
Rubin
7
Two more faves of the Senate
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A lot of media attention will go to Childs because of Clyburn’s
endorsement, but don’t sleep on other Black female jurists who could
benefit from senatorial backing. Biden emphasizes that he will consult
heavily with senators before making a pick. There’s Jackson-Akiwumi,
too, or a senator’s favor could benefit 2nd Circuit Judge Eunice Lee, a
former New York public defender, who hails from the state represented by
Senate Majority Leader Charles E. Schumer. Finally, there’s federal
district court Judge Wilhelmina “Mimi” Wright from Minnesota, a state
represented by another member of the Senate Judiciary Committee: Sen.
Amy Klobuchar (D). — James Hohmann
8
Three wild cards
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Kristen Clarke, who runs the Justice Department’s civil rights
division, would be popular with the left, but she was only confirmed in
May on a 51-to-48 vote. — James Hohmann
L. Song Richardson is the president of Colorado College and a
former dean of University of California at Irvine Law School. She’s a
highly respected legal scholar, and her appointment would be a two-fer.
There has never been a Black woman or an Asian American justice.
Richardson is both. So, for the record is Vice President Harris … but
she already has a good government job. — Paul Butler
Leslie Abrams Gardner, a federal district judge in Georgia, is
the sister of Democratic candidate for governor Stacey Abrams. She’s
only 47, went to Brown and Yale Law School, and was an assistant U.S.
attorney. — James Hohmann
The president continues to say he is running in 2024, and thus
Georgia, Nevada, Pennsylvania and Wisconsin remain places that need lots
of attention from Team Biden. I’m not an expert on which judges from
swing states might attract the eye of a judicial talent scout who’s also
tasked with reelection considerations, but if there is genuine ambition
about 2024, look to the benches of the states where every little bit
could help a president burdened by upside-down numbers. — Hugh Hewitt
Agree? Disagree? Share your thoughts in the comments,
appropriately Bluebooked, please. We’ll see you the next time a Supreme
Court seat (or four) opens up!
(http://www.autoadmit.com/thread.php?thread_id=5020874&forum_id=2#43881648)
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