Which Black Female?

Above the Law Founding Editor David Lat handicaps Joe Biden’s “Black Female” potential SCOTUS picks.

Who will President Biden pick to replace Justice Breyer? I offered some off-the-cuff reactions in a lengthy Twitter thread, and now I’ll provide more detailed analysis.

Here’s one thing we do know: the Biden Administration’s SCOTUS nominee will be a Black woman. In February 2020, back when he was a presidential candidate, Joe Biden promised to appoint the first Black woman to the Supreme Court. And yesterday, after news of Justice Breyer’s retirement broke, White House press secretary Jen Psaki reiterated that pledge.

Indeed, President Biden appears to have anticipated this very moment, by placing a record number of Black women on the federal appeals courts (where every current member of SCOTUS has come from, save Justice Elena Kagan). He has nominated eight Black women to the circuit courts, and five have been confirmed—doubling the number of Black women on the federal appellate bench.

Without further ado, here are five women I view as leading contenders to replace Justice Breyer on the U.S. Supreme Court, along with my rough odds on how likely it is that each will be nominated. Odds are, of course, subject to change (and I have already changed them from the odds I put out yesterday, in fact).

Judge Ketanji Brown Jackson: 3-to-2 odds (40 percent)
Age: 51 (born September 14, 1970)
Current role: Judge, U.S. Court of Appeals for the D.C. Circuit (since June 17, 2021)
Education: Harvard University (A.B.), Harvard Law School (J.D.)
Clerkship(s): Judge Patti Saris (D. Mass), Judge Bruce Selya (1st Cir.), Justice Stephen Breyer
Senate vote history: 53-44
ABA rating: Well Qualified

Judge Jackson is widely viewed as the frontrunner—and one can see why. First, she has the credentials and experience we look for in SCOTUS nominees (for better or worse): two Ivy League degrees; multiple clerkships, including a Supreme Court clerkship; and judicial experience, including service on the prestigious D.C. Circuit and eight years as a district judge before that. Second, she enjoys strong support in liberal and progressive circles, thanks to her background as a former public defender and rulings against Donald Trump and his administration in several high-profile cases—including the Don McGahn subpoena litigation, when she declared that “presidents are not kings.”

Third, she went through the Senate confirmation process just last year, winning support from all 50 Democrats, including Senators Joe Manchin (W. Va.) and Kyrsten Sinema (Ariz.), and three Republicans—Senators Susan Collins (R-Me.), Lindsey Graham (R-S.C.), and Lisa Murkowski (R-Alaska). Yes, a senator who previously supported her could argue “SCOTUS is different”—but the prestigious and powerful D.C. Circuit ain’t chopped liver, and any senator who voted for her last year did so with the knowledge that she was a potential high-court contender. And because Judge Jackson hasn’t done anything crazy while on the D.C. Circuit—indeed, critics might complain that she hasn’t done anything, period—it’s hard to see why any of these senators would have a change of heart.

So my guess is that Judge Jackson will get the nomination—unless there are some lucky breaks in favor of Justice Kruger, to whom we now turn. Read the rest of this entry »