President Joe Biden is currently preparing to fill a vacancy left by the retirement of Justice Stephen Breyer.
As of Thursday morning, Biden has yet to announce any contenders formally, but he is eyeing at least three judges, according his to advisors’ statements to The Associated Press.
The three judges are California Supreme Court Justice Leondra Kruger, U.S. Appeals Court Judge Ketanji Brown Jackson, and U.S. District Court Judge Julianna Michelle Childs.
Kruger, 45, is biggest name on the list. She received statewide attention for joining the California Supreme Court shortly after giving birth. She votes with Republicans more often than any of Gov. Jerry Brown’s other appointees, and she has gained a reputation as a swing voter.
Before that, Kruger clerked on the U.S. Supreme Court and argued a dozen cases before the justices as a lawyer for the federal government.
Jackson, 51, was nominated by President Barack Obama to be a district court judge. Biden elevated her to the U.S. Court of Appeals for the District of Columbia Circuit. Early in her career, she was also a law clerk for Breyer. After that, she pursued criminal law; she worked as a public defender, like Biden himself.
Childs, 55, began her career in labor and employment law before ascending to federal court in South Carolina in 2010. For the last decade, she has issued high-profile rulings about contentious issues like nuclear energy, vaccine mandates, and same-sex marriage.
Childs has been nominated but not yet confirmed to serve on the same circuit court as Jackson. Her name has surfaced partly because she is a favorite among some high-profile lawmakers, including House Majority Whip Rep. James Clyburn, D-S.C.
In 2020, Clyburn endorsed Biden as a candidate in the presidential primaries, despite Biden’s lagging campaign. Biden eventually won South Carolina’s closely watched primary by more than 10 points, an unexpectedly large margin. The rest is history.
In a 2020 debate, President Joe Biden vowed to nominate a Black woman to the Supreme Court.
In the past, some U.S. presidents have vowed to choose a judge from a certain demographic and then resorted to very unlikely figures. For example, former President Ronald Reagan promised to appoint the first woman. Reagan, given the paucity of female judges in the early 80s, picked the thoroughly obscure Justice Sandra Day O’Connor.
However, Biden seems to be choosing from a larger pool than Reagan. He has already nominated five Black women to the federal courts, with three more still pending. Plus, as of this month, he has won confirmation of 40 federal judges in total, the most since Reagan himself.
Other possible candidates for the Supreme Court could come from among that group, Biden aides and allies told the AP, especially since almost all of the recent Supreme Court nominees have been federal appeals judges.
Breyer, 83, will retire at the end of the summer, according to two sources who confirmed the news to The Associated Press on Wednesday. They spoke on condition of anonymity so as not to preempt Breyer’s formal announcement.
But the Senate can confirm a successor before there is a formal vacancy, and it has done so in the past. The White House has reportedly already started work, although it may take at least a few weeks before a nomination is formalized.
Biden said Wednesday he wasn’t going to get ahead of Breyer’s announcement.
“Every justice should have an opportunity to decide what he or she is going to do and announce it on their own,” Biden said. “Let him make whatever statement he’s going to make and I’ll be happy to talk about it later.”
Breyer’s replacement by another liberal justice would not change the ideological makeup of the court. Conservatives outnumber liberals by 6-3, and Donald Trump’s three nominees made a conservative court even more conservative.
Senate Majority Leader Chuck Schumer, D-N.Y., said Biden’s nominee “will receive a prompt hearing in the Senate Judiciary Committee and will be considered and confirmed by the full United States Senate with all deliberate speed.”
But Republicans in particular remain upset about Justice Brett Kavanaugh’s contentious 2018 hearing. Still, Democrats have the 50 votes plus a tiebreaker in Vice President Kamala Harris that they need to confirm a nominee.
Republicans who changed the Senate rules during the Trump-era to allow simple majority confirmation of Supreme Court nominees appeared resigned to the outcome. Sen. Lindsey Graham of South Carolina, an influential Republican on the Senate Judiciary Committee, said in a statement, “If all Democrats hang together — which I expect they will — they have the power to replace Justice Breyer in 2022 without one Republican vote in support.”
Nonetheless, Democrats have also been unable to get all their members on board for Biden’s social and environmental spending agenda or to move forward with a voting rights bill.
As a senator, Biden served as chairman of the Judiciary Committee, overseeing six Supreme Court confirmation hearings from 1987 to 1995, including Breyer’s.
And one person who will be central to Biden’s process is chief of staff Ron Klain, a former Supreme Court law clerk and chief counsel to that committee.
Two other Black women whom Biden appointed to federal appeals courts are also seen as contenders: Holly Thomas, a longtime civil rights lawyer he named to the U.S. Court of Appeals for the 9th Circuit, and Candace Jackson-Akiwumi, a former public defender he named to the U.S. Court of Appeals for the 7th Circuit.
Biden could also choose someone from outside the judiciary, though that seems less likely. One contender would be the head of the NAACP Legal Defense and Educational Fund, Sherrilyn Ifill, 59. She has headed the fund since 2013 and has announced she is stepping down in the spring.
The Associated Press contributed to this article.