Joe Biden breathed new life into his presidential campaign when he announced during a February 2020 debate that he intended to nominate a Black woman to the Supreme Court. Now, with reports of Supreme Court Justice Stephen Breyer’s retirement, Biden will get the chance to fulfill his promise.
Breyer is expected to step down at the end of the Court’s term in June or July, as NBC News reported, and his retirement would mark President Biden’s first opportunity to put his stamp on the nation’s highest court. If confirmed, Biden’s nominee could mark a first in the country’s history.
“Judicial diversity is of critical value,” said Alicia Bannon, director of the Judiciary Program at the Brennan Center for Justice. “I think that it’s a reflection of President Biden's recognition that it's important for communities that are impacted by the court to see themselves reflected in who sits in those seats of power.”
There has never been a Black woman on the U.S. Supreme Court, and today, only three women sit on the nine-person bench. Of them, Justice Sonia Sotomayor is the only woman of color. Justice Thurgood Marshall made history as the first Black Justice in 1967.
“I’m looking forward to making sure there’s a Black woman on the Supreme Court to make sure we in fact get everyone represented,” Biden said in 2020.
During a press conference on Wednesday, Press Secretary Jen Psaki said that Biden “certainly stands by” his campaign promise. Days after Biden made that commitment, his campaign won a crucial victory in the South Carolina primary powered by support from the state’s Black voters. The strength of that showing helped him clinch the Democratic Party’s nomination, and Black voters remained a staunch voting block for him in the general election. Months later, his party secured control of the Senate during Georgia’s special election.
“Biden's presidential win and the two Democratic Georgia senators’ wins, in large part, are due to the efforts of Black voters,” said Anna O. Law, associate professor of political science at CUNY Brooklyn College. “The Democratic Party owes them.”
Breyer’s reported departure is fueling speculation of who will take his place. One contender, Judge Ketanji Brown Jackson is a Harvard Law School graduate who served as a law clerk for Breyer. She earned the support of all 50 Democrats and three Republicans after Biden nominated her to the powerful U.S. Court of Appeals for the Washington, D.C. circuit. Her background as a former assistant federal public defender would bring a diversity of experience to the bench.
“She's eminently qualified,” Law said, nodding to the bipartisan support Jackson received in June. Then Sens. Collins, Graham, and Murkowski voted for her confirmation.
Another possible contender, Justice Leondra R. Kruger of the California Supreme Court, clerked for former Justice John Paul Stevens and graduated from Yale Law School. She also served as acting deputy solicitor general during the Obama administration, arguing 12 cases in front of the Supreme Court on behalf of the federal government.
Judge J. Michelle Childs hails from the state that’s credited with turning Biden’s presidential campaign around: she serves on the Federal District Court in South Carolina and is an alumna of The University of South Carolina School of Law. Biden has already nominated her to the federal appeals court for the District of Columbia Circuit.
Biden has tapped a number of Black women for judgeships on federal appeals courts, including Candace Jackson-Akiwumi, Tiffany Cunningham, Eunice Lee, and Holly Thomas.
While civil rights attorney Sherrilyn Ifill, President and Director-Counsel of the NAACP Legal Defense and Educational Fund, is rumored to be in contention, Law pointed out that her lack of federal judiciary experience makes her a long shot. “The reason why Democrats and Republicans like people that have federal judicial experience is not so much that they know how things work, it’s that the person has a paper trail of cases that they can scrutinize, so there's no surprises about how this person is actually going to vote,” Law said.
The same goes for Vice President Kamala Harris, who lacks federal judiciary experience but has experience as a former prosecutor. Law said she can see someone like Jackson succeeding in the process because her recent confirmation and her record as a federal judge make her “a known quantity — but not in the known quantity sort of ‘lightning rod’ way that Kamala Harris would be.”
It typically takes a few months for a nominee to work her or his way through the confirmation process, though Justice Amy Coney Barrett was confirmed in only a month and a half. The timing of Breyer’s retirement could give Biden a chance to notch a win before voters head to the polls for November’s midterm elections.
“I think it will be something that he can at least point to and say, [that] we seated somebody who was aligned with what our administration believes is good judicial practice,” said Chryl Laird, assistant professor at the University of Maryland College Park and the author of “Steadfast Democrats: How Social Forces Shape Black Political Behavior.” She pointed out the court’s rightward trajectory on issues like abortion, affirmative action, gun rights and First Amendment protections. “That would be meaningful for some people,” she said.