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Justice Stephen Breyer officially announced his resignation from the Supreme Court on Thursday, allowing President Biden to fill one seat on the Court while the Democratic Party still retains control of the Senate before the midterm elections. Democrats have the slimmest majority possible in the upper house, however, the road is open for Biden to score a much-needed political win if he manages to get all of his party on board with his nominee—as a Supreme Court justice can be confirmed with a simple majority.
Biden announced he will fulfill his promise that he will nominate a black woman (the first one) to replace Breyer. As it is tradition with every Supreme Court nomination, the media has already started to speculate on who might be the candidate Biden chooses to fill the seat, regardless of who Biden selects, the new Justice will most likely not be a fundamental change in the ideological composition of the Court, as the division would still be 6 “conservative” justices and 3 “liberal” ones.
Judge Ketanji Brown Jackson
Ketanji Brown Jackson, a graduate of Harvard, is currently serving as a judge in the U.S. Court of Appeals for the District of Columbia Circuit, a position she was appointed to just last year after Merrick Garland left the post to become Biden’s new Attorney General. Before that, Jackson served as a clerk for retiring Justice Breyer at a younger age, and as a federal judge in DC in 2019 she delivered a decision determining that former White House Counsel Don McGahn did not have immunity from testifying in a congressional investigation against former President Trump.
Crucially, she has already faced a Senatorial confirmation process when appointed to her current post at the U.S. Court of Appeals. When she was confirmed to the bench in June 2021 with the support of all Democrats and three GOP Senators (Lindsey Graham, Susan Collins, and Liza Murkowski). This key advantage is one of the reasons why she is currently considered to be the favorite to get Biden’s nomination to the Court.
Justice Leondra Kruger
Leondra Kruger is one of the current six members of the California Supreme Court, she was nominated for that position in 2014 by former governor Jerry Brown. Before being part of the California Supreme Court, Kruger worked for the Obama Justice Department as an Assistant to the Solicitor General and as Acting Solicitor General, in those posts, Kruger argued a dozen of cases to the Supreme Court on behalf of the government.
Although Kruger is younger than Jackson, she has never had to face a Senate confirmation process, as she has never been a federal judge. Kruger graduated from Yale and was a clerk to former SCOTUS Justice John Paul Stevens.
J. Michelle Childs
Childs has been a federal judge in South Carolina for more than eleven years after being appointed to the position by President Obama in 2010, Biden had previously announced her nomination to an open seat in the DC Circuit Appeals Court. In 2014, she ruled in favor of a same-sex couple who argued that South Carolina’s refusal to acknowledge their marriage was unconstitutional. Childs has gone through a Senate confirmation process when she was appointed to her position as a federal judge in South Carolina.
Childs got her undergraduate degree from the University of South Florida and went to USC law school.
The wild cards
Although most of the media reports on the issue have pointed to Jackson, Kruger, and Childs as the clear front runners for the vacancy, there are a few other names that could be under Biden’s consideration in case his main options do not work as well as intended.
Judge Candace Rae Jackson-Akiwumi is currently serving at the Seventh U.S Court of Appeals after Biden nominated her to the post last year. She got confirmed in a 53-40 vote in the Senate. Rae Jackson went to Yale Law school.
Leslie Abrams Gardner has served as a federal judge in Georgia after Obama appointed her in 2014, before that she worked in the private sector, and she also attended Yale Law School. Abrams Gardner, however, is also the sister of Georgia’s Stacey Abrahams, who is currently running for Governor.
One of the wildest speculations over the open SCOTUS seat is that Biden will nominate VP Kamala Harris to the post. The rumor was first briefly mentioned in a controversial CNN report inside the Harris Vice-presidency, calling it an “Aaron Sorkin-style rumor.” Harris has the legal background, as she was the California Attorney General for six years, however, it seems unlikely that Biden would make such an unprecedented move, especially when he has many more options on the table.
Whoever Biden chooses as the new Supreme Court Justice, she will probably face a fairly swift confirmation process. Although Senator Sinema (D-AZ) has said she will carefully vet any nominee, she has already voted for Biden’s nominees for a while, meaning that, unless a major change happens, she will be confirmed to the highest court of the land with the support of the Senate Democrats and she could even gain some votes from moderate Republicans.
Daniel is a Political Science and Economics student from the University of South Florida. He worked as a congressional intern to Rep. Gus Bilirakis (FL-12) from January to May 2020. He also is the head of international analysis at Politiks // Daniel es un estudiante de Cs Políticas y Economía en la Universidad del Sur de la Florida. Trabajo como pasante legislativo para el Representate Gus Bilirakis (FL-12) desde enero hasta mayo del 2020. Daniel también es el jefe de análisis internacional de Politiks.