With American Supreme Court Justice Stephen Breyer now confirmed to retire, President Joe Biden has a window of opportunity to mark his place in the history books and nominate a replacement. In line with his track record of diversifying top positions in US politics Biden has pledged to nominate the first black woman to the Court. Ketanji Brown Jackson, Leondra Kruger and Michelle Childs are the current favourites to be selected as his nominee. For any of these women to be nominated would be historic: they would serve as the first black woman to sit on America’s highest court.
The process of confirmation to the Supreme Court would require a simple majority in the Senate. Currently the Democrats and Republicans split the chamber with Vice President Kamala Harris’s tie-breaking vote giving the Democrats a thin majority. With the Republicans expected to take the Senate in the midterms, Democrats will be keen to secure a nomination and confirmation swiftly to elect a Justice in line with their ideology.
Educated at Ivy League Harvard Law, Ketanji Brown Jackson is a strong contender with a track record that marks her out. She has served in private practise, as sentence commissioner vice president and as a public defender. However, perhaps her greater advantage lies in her apparent bipartisan support. She has already been successfully confirmed to the United States Court of Appeals for the District of Columbia Circuit, endorsed by all 50 of the Democrats’ caucus and three Republicans. This cross-party support serves to boost her chances and alleviate any fears for Biden if a Democrat rebels.
Leondra Kruger is a second contender, currently serving on California’s Supreme Court. Similarly educated at an Ivy League school – this time Yale Law – she is no stranger to making history as a black woman having previously served the first black female Editor-in-Chief at Yale Law Journal. Her previous experience presents a shiny record, serving as Acting Deputy Solicitor for the Obama administration and with 12 Supreme Court arguments under her belt. Experience and a history of success mark Kruger as one to keep a close eye on.
The third contender is Michelle Childs. If class diversity is one of Biden’s considerations, Childs is from a blue-collar background, an underrepresented group on the Supreme Court. Unlike her opponents, Childs did not attend an Ivy League school, graduating from the University of South Carolina. Childs was nominated by Biden to join Jackson on the US Court of Appeals for the DC Circuit, but this process is now on hold, potentially pointing to the president strongly considering Childs as his nominee.
Yet, despite being considered an outsider, Childs crucially holds an accolade that the others lack: her endorsement by Jim Clyburn, which hugely bolsters her chances. Clyburn is the majority whip in the House of Representatives, third ranking Democrat in that chamber and a close ally of Biden having helped him revive his candidacy with a crucial primary win in South Carolina almost two years ago. Having such influence, and a man who holds Biden’s admiration as well as his ear is certainly beneficial.
With Democrats holding a Senate majority Biden’s nomination will likely encourage very little resistance by Republicans due to such obstruction being futile. So, the Democrats will have their pick. Yet it will not change the strong 6-3 conservative majority in place and affect upcoming rulings that will decide controversial issues such as abortion.
However, Biden’s choice could hold great significance in other ways. With his approval rating and that of his party plummeting, an election of a black woman, following through on his diversity pledge, may mitigate the damage projected at the upcoming November midterms, and generally boost his poll numbers. But more importantly perhaps, although it may not change the current ideological majority, electing a black woman could help shape the law in the future, especially regarding minorities.
Illustration: Anna Kuptsova