(Photo: Evening Standard)
By Lucy O’Donoghue – Regular Contributor
In April 2021, Demand Justice, an advocacy group that wants to “restore balance to the courts by reforming the (U.S.) Supreme Court”, launched a petition to get Supreme Court Justice Stephen Breyer to resign. It wasn’t because they objected to or opposed the work he had done as a Justice, but because they wanted him, the oldest member of the Supreme Court at 83, to retire to make way for a black woman. The campaign included a billboard truck that circled the Supreme Court with “Breyer, retire. It’s time for a Black Woman Supreme Court Justice. There’s no time to waste” written on the side.
Justice Breyer had been appointed to the Supreme Court in 1994 by then President Bill Clinton and was a bipartisan favorite when he was appointed with a confirmation vote of 87-9 in the Senate.
At the time of his appointment, he was part of the minority liberal wing of the Court, and he acted as a moderate liberal throughout. He has written the majority opinion on multiple influential cases such as Stenberg v. Carhart which struck down a law banning partial-birth abortions as it didn’t consider the pregnant woman’s health.
Donald Trump had, and made use of, the opportunity to reinforce conservative control of the Supreme Court during his Presidency. He appointed three Supreme Court Justices, two of them replacing conservatives, but the other vacancy was created by the death of the liberal Ruth Bader Ginsburg. The memory of Justice Ginsburg not retiring when Democrats held both the White House and the Senate during the Obama Administration, but holding on to her seat until her death, is still strong. Her place was taken by Amy Coney Barrett, a hardline conservative, making the balance of the Court overwhelmingly conservative, with six conservative justices to three liberal ones.
The timing of Breyer’s retirement, with the Democrats controlling the Senate, if only by the Vice President’s casting vote, means that Biden should be able to get his nominee through without difficulty. Waiting until after the mid-term elections in the autumn would mean that it would be far from guaranteed.
Some Republicans have voiced concern about who Biden will pick as his nominee. The Senate Minority Leader, Mitch McConnell, has said that “the American people elected a Senate that is evenly split at 50-50. To the degree that President Biden received a mandate, it was to govern from the middle, steward our institutions, and unite America. The president must not outsource this important decision to the radical left”. Only a simple majority is needed for a judicial nominee to be confirmed, so if someone palatable enough for all Democrats is nominated then Biden will get his choice through. But some of those he is considering would also win support from at least some Republicans.
In his election campaign, Biden pledged that he would nominate the first black woman to the Supreme Court. He reiterated this promise after Breyer’s retirement, saying that: “The person I will nominate will be someone with extraordinary qualifications, character, experience, and integrity, and that person will be the first Black woman ever nominated to the United States Supreme Court”.
There are three black women whose names are being most discussed, including in the influential SCOTUSblog, which covers the Supreme Court closely. They are Ketanji Brown Jackson, Leondra Kruger, and Michelle Childs.
Jackson, who seems to be the current frontrunner, was confirmed last year as a member of the Court of Appeals for the D.C. Circuit, one of the highest-profile positions in the country. She was approved with a vote of 53-44, gaining the support of three Republicans, a sign that Republicans might be prepared to accept her Supreme Court nomination. As a district judge in 2019, Jackson handed out the decision that President Trump’s former White House counsel, Don McGahn, must testify in the Mueller inquiry, writing that “Presidents are not Kings…they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control”.
Another leading contender, Leondra Kruger, is a Justice on the California Supreme Court and a former attorney for the Department of Justice during the Obama Administration. Kruger, who is 45, would be the youngest Justice on the Court by four years. Despite her youth, she argued twelve cases at the Supreme Court on behalf of the Obama Administration. However, she may not be the perfect liberal that many Democrats would want. The SCOTUSblog says that she has been “difficult to pigeonhole” politically, sometimes siding with conservative arguments in the California Supreme Court.
Michelle Childs has been named by a White House spokesperson as “among multiple individuals under consideration for the Supreme Court”. Her nomination to the U.S. Court of Appeals has been put on hold while she is being considered. Childs may be a candidate who would get the bipartisan support that Biden wants for the nomination. Recently, Republican Senator Lindsey Graham, of South Carolina, said that he “can’t think of a better person for President Biden to consider”. In 2009 Childs gained support from Senator Graham and others in the Republican party when she came before the Senate for a seat on the U.S. District Court for the District of South Carolina. Childs stands apart from Kruger and Jackson, coming from a non-Ivy League University, which would increase the educational diversity of the Court. Or as Graham put it, “Three guys in pick-up trucks came up to me and said she ‘seems like a nice lady. I’m tired of this Harvard-Yale stuff.”
While this next Justice will be a historic appointment, the first black woman to join the Supreme Court, it’s unlikely to lead to a change in the decisions made during the next few years. With a conservative majority remaining at 6-3, we can expect to see the Court taking a conservative line in most of its decisions.