Meet Joe Biden’s Likeliest Picks for the Supreme Court

(Bloomberg Opinion) -- Joe Biden has fulfilled his promise to choose a woman as his running mate. Let’s turn our attention to another promise he made: to name a Black woman to the Supreme Court.

A number of women with different kinds of legal experience have been suggested by NGOs and journalists. But to legal insiders, Biden’s options narrow down very quickly to two names: Justice Leondra Kruger of the California Supreme Court, and Judge Ketanji Brown Jackson of the federal district court in Washington, D.C.

Both are extremely accomplished, with gold-plated resumes that are reminiscent of the justices picked by President Barack Obama, and for that matter by President Donald Trump. Both are also super-smart and well-liked. And realistically, they are the only two Black women who are young enough to serve for the long haul and have the relevant judicial experience to make their confirmation straightforward, even boring — which is just what a nominating president wants.

To be clear, there are many more than two Black women qualified to sit on the court. They include legal activists, law professors, judges and government officials with experience at all levels. And in prior decades, it wasn’t unheard of for justices to come from the Senate, the cabinet, or even private corporate law firms. They didn’t all have fancy educational backgrounds, either.

But that’s changed in recent years, partly as a product of bruising confirmation battles and partly as an effect of elite consensus on what a nominee’s record should look like. Today’s nominees tend to have attended an Ivy League law school; clerked for a Supreme Court justice themselves; and served as a high-level judge by a relatively young age. That’s one reason the possible Biden nominees are, in reality, so few. There are just not that many Black women who both fit that incredibly narrow mold.

With a Democratic Senate — likely the only way Biden could get any nominee confirmed — Biden could try to change the norms and push through someone with a different resume. Yet that sort of risk-taking seems unlikely from Biden, who has just made his VP pick according to the most conventional of conventional wisdom.

By pure insider resume standards, Kruger has a slight edge over Jackson. She went to Harvard College and Yale Law School, was editor in chief of the Yale Law Journal, and clerked for Justice John Paul Stevens. She spent six years in the office of the solicitor general, arguing 12 cases before the Supreme Court and rising to acting principal deputy solicitor general, the number two position in the office. She then served in the Office of Legal Counsel at the Justice Department, which, like the SG’s office, is a breeding-ground for judges. All that was before she was 40, and she’s only 44 now. (Yes, you should be feeling bad about your career accomplishments at this point. I know I am.)

Had Kruger been successfully appointed to the federal appellate bench by Obama, she would basically be the presumptive Supreme Court nominee. But by the time she was even plausibly old enough to be considered for such a spot, back in 2014, Republicans controlled the Senate. Mitch McConnell wasn’t likely to let her nomination go through — because he knew perfectly well it would be a decisive step toward getting her on the Supreme Court.

So Governor Jerry Brown of California put her on the state Supreme Court.(1) And there hasn’t been a Supreme Court nominee from a state court since Justice Sandra Day O’Connor, who was on an Arizona appellate court.

As for Jackson, she also went to Harvard College. (Disclosure: We lived in the same freshman dorm and were friends; she was and is a totally lovely, fun, and brilliant person.) She attended Harvard Law School, was on the Harvard Law Review, and clerked for two distinguished federal judges, Patti Saris and Bruce Selya, before clerking for Justice Stephen Breyer. She worked at the U.S. Sentencing Commission and later became its vice chair. She found time along the way to serve as a public defender in Washington, D.C., and as an appellate lawyer at a prestigious D.C. law firm.

Jackson became a federal judge in 2013. There was no major fight over her nomination, probably because it was for a district court position, which is not the traditional path to the Supreme Court. (Of the current justices, only Justice Sonia Sotomayor was a district court judge, and she followed that with a long stint on the court of appeals.) She’s now just shy of her 50th birthday.

Jackson’s national profile rose significantly in 2019 when she presided over a case in which the House Judiciary Committee sought to enforce its subpoena against Donald McGahn, the former White House counsel. Jackson’s opinion rejected the Trump administration’s claim of absolute immunity and insisted that “presidents are not kings.” No comparably high-profile case has come before Kruger.

If Biden stays conventional, he will nominate one of these two women. Either would be a stellar choice. Provided the Senate goes Democratic, one will become the first Black woman to sit on the Supreme Court.

(1) That court has become a kind of waiting room for brilliant potential Democratic Supreme Court nominees, including Kruger’s colleagues Justice Goodwin Liu (whom Obama did try to get on the federal bench, only to be blocked by McConnell)and Justice Tino Cuellar.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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