Breyer retirement lays groundwork for historic nomination of first Black woman to Supreme Court

  • In Politics
  • 2022-01-26 21:11:59Z
Judge Ketanji Brown Jackson, then a nominee for the U.
Judge Ketanji Brown Jackson, then a nominee for the U.  

WASHINGTON - Associate Justice Stephen Breyer's expected retirement this year hands President Joe Biden a chance to make Supreme Court history by fulfilling a campaign pledge that was central to his election: naming a Black woman to the nation's highest court for the first time.

Biden raised the idea of choosing a Black woman during a debate before the presidential primary in South Carolina on Feb. 29, 2020. As his campaign struggled after losses in Iowa and New Hampshire, the pitch resonated with Black voters and probably contributed to his win in South Carolina - fueling his path to the nomination.

"I'm looking forward to making sure there's a Black woman on the Supreme Court, to make sure we, in fact, get every representation," he said to applause.

Months later, Biden said he was "putting together a list of a group of African American women who are qualified and have the experience to be in the court." Aides to Biden's transition told The Wall Street Journal in 2020 that he would have a short list of candidates compiled by the time he was inaugurated.

White House spokeswoman Jen Psaki said Wednesday that Biden stands by his commitment to nominate a Black woman to the court.

Biden's Supreme Court hope:A Black woman on the Supreme Court

Three women serve on the high court - Associate Justices Sonia Sotomayor, Elena Kagan and Amy Coney Barrett. Associate Justice Clarence Thomas is the only Black jurist, and Sotomayor is the first and only Latina.

Unlike his predecessor, Donald Trump, Biden has not formally unveiled a short list, but several names consistently surface as possibilities:

D.C. Circuit Judge Ketanji Brown Jackson was on President Barack Obama's short list after Associate Justice Antonin Scalia's death in 2016. At 51, she could serve for decades on the court. Jackson won Senate confirmation to the district court in D.C. by voice vote in 2013, signaling she was not controversial, but she has written several scathing opinions against Trump since then that could draw ire from Senate Republicans.

Jackson, a former Breyer clerk, was confirmed to the U.S. Court of Appeals for the District of Columbia Circuit on a 53-44 vote in mid-June. Three Republicans joined Democrats in supporting her, Sens. Lindsey Graham of South Carolina, Lisa Murkowski of Alaska and Susan Collins of Maine.

Those opposing Jackson noted that she largely dodged a question in her confirmation hearing in April about whether she supports the idea of a "living Constitution," the idea that judges may adapt their reading of the founding document to the changing times. Jackson sidestepped the query, saying she hadn't had to confront it on the district court.

How Breyer changed Supreme Court: Pragmatist. Institutionalist. Optimist.

Iowa Sen. Chuck Grassley, the top Republican on the Senate Judiciary Committee, noted the exchange when he announced his opposition.

"They take an oath to enforce the Constitution and interpret the law, not make law," Grassley told USA TODAY. "And it doesn't matter who you are. That's what your job is wherever you're coming from. That's what you gotta be."

Judge Ketanji Brown Jackson had lawmakers
Judge Ketanji Brown Jackson had lawmakers' support at her Senate confirmation hearing in April 2021.  

Leondra Kruger, an associate justice on the California Supreme Court, worked in the Justice Department for the Obama and George W. Bush administrations. Kruger, 45, argued a dozen cases at the Supreme Court during those years before then-Gov. Jerry Brown, a Democrat, made her one the youngest ever named to the state's high court.

• House Democratic Whip James Clyburn, the highest-ranking African American in Congress, suggested U.S. District Court Judge J. Michelle Childs of South Carolina. Childs, 55, has a less traditional background, serving as a state labor official before Obama nominated her to the federal trial court in 2009. She is the third woman to serve as a federal judge in South Carolina. Biden nominated Childs to serve on the D.C. Circuit in December.

• Citing unnamed lawmakers, The New York Times reported in February that Democrats brought at least two other names to the attention of the White House: Judge Leslie Abrams Gardner on the U.S. district court in Georgia and Danielle Holley-Walker, the dean of Howard University's law school. Gardner, a former assistant U.S. attorney, is the younger sister of Stacey Abrams, a former Georgia gubernatorial candidate who worked to boost voter turnout in the state.

Biden's commitment to name a Black woman to the nation's highest court has drawn attention to a lack of diversity on the U.S. appeals courts - the pool from which Supreme Court justices usually are drawn.


Biden, a former Senate Judiciary Committee chairman, could expand his search beyond federal judges, which would significantly grow the pool of candidates.

Supreme Court nominees don't have to come from appellate courts, but they usually do. Only one current justice didn't hear appeals - Kagan - and she was the U.S. solicitor general. As the federal government's top lawyer arguing cases before the nation's highest court, the position is so closely intertwined with the court that it's sometimes referred to as the "10th justice."

Not only would Biden following through on his campaign promise put the first Black woman on the Supreme Court, assuming she is confirmed, it would also put four women on the court for the first time. And it would mark the first time two African Americans served simultaneously.

This article originally appeared on USA TODAY: Breyer retirement is chance to name Black woman to Supreme Court


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