Biden’s Likeliest Supreme Court Pick

If nominated, Ketanji Brown Jackson wouldn’t necessarily change the Court’s balance. But she would make history.

Judge Ketanji Brown Jackson testifies before a Senate Judiciary Committee hearing
Kevin Lamarque / Getty

Like an air-horn blast at summer camp, the news of 83-year-old United States Supreme Court Justice Stephen Breyer’s imminent retirement is calling Democrats to attention. For the first time since 2016, when then-President Barack Obama tried and failed to appoint Merrick Garland to the bench, a Democratic president has the chance to fill an open seat on the Supreme Court, and this time around, he will likely be successful. But who will President Joe Biden choose?

We know that his nominee will almost certainly be a woman. In 2020, then-candidate Biden vowed that he would respond to a Supreme Court opening by nominating a Black woman. Dozens of candidates are being talked about, but nearly all of the Court watchers I interviewed for this story have their money on one in particular: Ketanji Brown Jackson.

Jackson, who is 51, fulfills a lot of requirements for the establishment set. She has the same Ivy League credentials as the sitting justices, having earned both her undergraduate and her law degree from Harvard and edited for the Harvard Law Review. She clerked for three federal judges—including Breyer, from 1999 to 2000. If nominated and confirmed, Jackson will follow the same track as Brett Kavanaugh, who also clerked for the justice he ultimately replaced. Also like Kavanaugh—and seven other current and former justices—Jackson would be coming directly from the D.C. Circuit Court of Appeals, the second-most-important court in the country after the Supreme Court.

But Jackson would be the first Black woman to serve on the high court, offering the body a perspective that progressives, in particular, have long wanted to see represented. (Of the 115 justices who have served, all but seven have been white men.) Jackson also has strayed from the typical route of a Court nominee, which matters a lot to Democrats, who have tended to prioritize experience over ideology. After a few years in private practice, she worked as a federal public defender. Later, she served for four years as the Obama-appointed vice chair of the U.S. Sentencing Commission, during which time the commission reduced sentences for many people convicted of drug crimes. Appointing someone with Jackson’s experience to the Supreme Court “would make quite a statement,” Brian Fallon, the executive director of Demand Justice, a progressive group advocating for court reform, told me. “It would signal a new era and a shift away from the decades-long default to former prosecutors and corporate lawyers.”

Jackson does not have a history of controversial rulings. But in her previous perch as a federal district judge, she drew attention for deciding several times against the Trump administration. Most famously, Jackson ruled in 2019 that former White House Counsel Don McGahn had to comply with a congressional subpoena and testify before Congress as part of its impeachment inquiry into then-President Donald Trump. A particular line in the ruling impressed Democrats: “The primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,” Jackson wrote. The same line struck many Republicans as overly confrontational. It raised “concerns about her temperament and whether she used her role in a political manner,” Carrie Severino, the president of the conservative Judicial Crisis Network, told me.

If she’s nominated, Democrats probably have the 51 votes necessary to confirm Jackson. (Vice President Kamala Harris would act as the tie-breaking vote.) “President Biden’s nominee will receive a prompt hearing in the Senate Judiciary Committee, and will be considered and confirmed by the full United States Senate with all deliberate speed,” Senate Majority Leader Chuck Schumer said in a statement today. In addition, three Republican senators—Lisa Murkowski, Susan Collins, and Lindsey Graham—voted last June to confirm her to the D.C. appellate court, and they might find it difficult to oppose her nomination this time. But some Republicans can be expected to argue that Jackson lacks experience, given that she’s been on the D.C. Circuit Court of Appeals for less than a year.

Although Jackson appears to be the leading contender for Breyer’s seat, other candidates will receive serious consideration. Leondra Kruger, an associate justice on the California Supreme Court, is seen as the top choice for Democrats who’d like Biden to pick someone outside the Beltway. Kruger, who clerked for the late Justice John Paul Stevens, argued 12 cases before the U.S. Supreme Court as an assistant to the U.S. solicitor general. In her seven years on the California Supreme Court, she’s been a swing vote, siding with the more conservative justices on several key decisions. She is only 45, which suggests that she could serve on the bench for several decades. But that could also make her appointment seem less urgent to Biden. “The expiration date on Jackson as a SCOTUS nominee is much closer,” David Lat, the founder of the website Above the Law, told me. Biden “can always nominate Kruger for another vacancy” later on.

The second tier of candidates includes a variety of names, some likelier to be seriously considered than others. On the list are jurists like J. Michelle Childs, a federal judge from South Carolina for whom House Majority Whip James Clyburn has been advocating, and U.S. District Court of Minnesota Judge Wilhelmina Wright, a favorite of Senator Amy Klobuchar of Minnesota. A third potential candidate is Judge Leslie Abrams Gardner, who sits on Georgia’s district court and is the sister of the voting-rights advocate Stacey Abrams. Democratic representatives such as Val Demings of Florida and Karen Bass of California have been floated as possible options for the seat as well, but no president has chosen a nominee with congressional experience in more than 50 years.

Administrations often claim to consider a huge range of candidates for the Court, even long-shot ones, as a way to flatter political allies and boost national profiles. Biden’s team, for example, will probably leak a few of the above names before announcing the president’s final selection. The media attention might be helpful for someone like Demings, who is challenging Marco Rubio for his Senate seat this year.

Publishing a shortlist is also a way for presidents to demonstrate their own political allegiances. Five years ago, when Trump was running for president, he released a list of potential Supreme Court nominees that helped calm Republicans’ fears that he wasn’t conservative enough for the job. Leaking his own set of names will demonstrate Biden’s intentions for a reimagined Supreme Court—and also help strengthen his support among Black voters and especially Black women, who are a key constituency for Democrats.

Advocates for Court reform argue that the president’s shortlist should include people with different kinds of expertise. “We’ve moved to this very elitist view of what makes [someone] a qualified” nominee, Fallon told me. “It would be a nice signal if he did look at people who weren’t sitting judges.” Considering people such as Sherrilyn Ifill, the president of the NAACP Legal Defense and Educational Fund, and Christina Swarns, the executive director of the nonprofit Innocence Project, would send a message to the progressive wing of the Democratic Party that Biden recognizes their concerns.

Justice Breyer, who has spent nearly three decades on the Court, intends to resign this summer, which means he will still weigh in on some of the most consequential cases facing the panel this year, including a major Second Amendment decision and a Mississippi abortion case that poses a direct challenge to Roe v. Wade.

Nominating Jackson, or any of the above candidates, is unlikely to change the balance of the Court. The bench will still contain six Republican-nominated justices and only three Democrat-nominated ones. But Jackson, if appointed and confirmed, would be joining a Court that has been more unpredictable than most in recent memory: The justices forged unlikely alliances and handed down surprising decisions in the previous two terms. Americans won’t know for a while how Jackson’s addition might affect the dynamics of the Court, but in this moment, liberals can take comfort in the fact that Breyer’s replacement is not being chosen by Trump.