Meet the Progressive Frontrunners To Replace Justice Stephen Breyer

President Biden's most likely picks are bound to rankle conservatives

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January 26, 2022

President Joe Biden's likely picks to succeed Justice Stephen Breyer on the Supreme Court are progressive jurists with records that could rankle Republicans.

Biden vowed to put a black woman on the High Court during the 2020 campaign, and White House press secretary Jen Psaki indicated Wednesday he would keep that promise. But the pool of prospective candidates is small given the limited number of black women in the upper reaches of the federal judiciary. The field shrinks further when controlling for age. Recent presidents have preferred younger nominees with the promise of a long tenure.

The frontrunners are thought to be Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the D.C. Circuit; Justice Leondra Kruger of the California Supreme Court; and Judge J. Michelle Childs, a federal trial judge in South Carolina.

All three are reliably progressive. Jackson was a player in the legal resistance to former president Donald Trump. Kruger's advocacy in a landmark 2012 Supreme Court case will trouble religious conservatives. And Childs made a last-minute change to South Carolina election procedures that could reignite debate over the 2020 presidential election.

Judge Ketanji Brown Jackson, U.S. Court of Appeals for the D.C. Circuit

The Biden administration has already positioned Jackson for the nomination, elevating her from a federal trial court to the D.C. Circuit, a powerful appeals panel and a farm team for the Supreme Court.

Jackson was confirmed as a federal trial judge in Washington, D.C., in 2013. In 2019, she blocked a Trump administration plan to expand the pool of illegal immigrants eligible for fast-track deportations. That same year she backed House Democrats in their bid to enforce a subpoena for testimony from former White House counsel Don McGahn. Both decisions were overturned on appeal.

A Jackson nomination could be somewhat awkward for the White House, which prizes judicial candidates with experience in legal aid or consumer advocacy. Jackson's resume includes the kind of corporate, white collar experience progressives want to purge from the bench. After clerking for Breyer on the Supreme Court, Jackson advised commercial clients at an arbitration boutique. She also practiced at elite, lucrative firms between stints in government service.

Jackson was notably absent from a list of prospective Supreme Court nominees the leftwing judicial advocacy group Demand Justice produced during the 2020 campaign. Demand Justice apparently reconciled with Jackson, adding her to their Supreme Court shortlist and praising her as a "rising star" when she was tapped for the D.C. Circuit.

Justice Leondra Kruger, California Supreme Court

The White House hoped to lure Kruger back to Washington from the West Coast. But she reportedly twice declined offers to join the administration as solicitor general, the Justice Department officer who represents the incumbent administration before the Supreme Court.

Kruger has experience with the solicitor general's office, having worked there as a career lawyer for six years. She argued a dozen cases before the Supreme Court during that time, including one that is sure to play in any future confirmation battle, Hosanna-Tabor v. EEOC.

Hosanna-Tabor involved a First Amendment rule called the "ministerial exception," which keeps courts out of employment disputes at religious institutions. The ministerial rule is why, for example, the Catholic Church can bar women from the priesthood, even though federal laws forbid sex-based hiring and firing. The High Court's task in Hosanna-Tabor was defining the scope of the exception—clerics are in, but what of school teachers or administrators?

Representing the Obama administration in the Supreme Court, Kruger disputed that the First Amendment even establishes a ministerial exception. By her thinking, the government could regulate a religious organization's staffing decisions like almost any other entity. The argument got a cool reception at the Court. Justice Elena Kagan, Kruger's onetime boss at the Justice Department, disapprovingly called her position "amazing."

Judge J. Michelle Childs, U.S. District Court for the District of South Carolina

Childs's workaday career path could be a political benefit compared with Jackson and Kruger's platinum-plated résumés. After graduating from state schools, she practiced labor law for a regional firm based in South Carolina before entering public service in the early 2000s. Childs was an employment regulator for the state government and served as a local judge before she was tapped for the federal bench in 2009.

With deep connections in South Carolina politics, Childs has a patron in Rep. Jim Clyburn (D., S.C.), who still carries influence in the White House after his endorsement helped revive Biden's flailing presidential campaign.

Though narratively attractive, a Childs nomination could devolve into a toxic retread of the 2020 presidential election. In September 2020, Childs waived a witness signature requirement for absentee ballots cast in South Carolina, saying fear of COVID transmission could deter some voters from complying with the requirement.

Republicans bitterly opposed such late-breaking changes to election procedures. They warned that relaxing deadlines and witness requirements would undermine public confidence in the outcome, and they said judges and bureaucrats have no authority to rewrite election rules under the Constitution.

The Fourth U.S. Circuit Court of Appeals upheld Childs's order over a dissent from Judge J. Harvie Wilkinson III, who faulted the courts for rewriting ballot procedures at the eleventh hour, thereby "gumming up the works and making a hard task even harder."

The Supreme Court ultimately blocked Childs's order, though they allowed the state to accept unwitnessed ballots received prior to their decision.