President Joe Biden strongly affirmed Thursday that he will nominate the first Black woman to the U.S. Supreme Court, declaring such historic representation is “long overdue” and promising to announce his choice by the end of February.
In a White House ceremony marking a moment of national transition, Biden praised retiring Justice Stephen Breyer, who will have spent nearly 28 years on the high court by the time he leaves at the end of the term, as “a model public servant at a time of great division in this country.”
And with that the search for Breyer’s replacement was underway in full. Biden promised a nominee worthy of Breyer’s legacy and said he’d already been studying the backgrounds and writings of potential candidates.
“I’ve made no decision except one: The person I will nominate will be somebody of extraordinary qualifications, character and integrity,” he said. “And that person will be the first Black woman ever nominated to the United States Supreme Court. It is long overdue.”
Biden’s choice will be historic on its face: No Black woman has ever served on the high court. But the decision is also coming at a critical time of national reckoning over race and gender inequality. However, the court’s 6-3 conservative majority is destined to remain intact.
Biden is using his choice to fulfill one of his early campaign promises, one that helped resurrect his moribund primary campaign and propel him to the White House in 2020.
And it gives him the chance to show Black voters, who are increasingly frustrated with a president they helped to elect, that he is serious about their concerns, particularly with his voting rights legislation stalled in the Senate. It also could help drive Democratic enthusiasm amid concerns about a midterm routing in congressional races.
Biden spent his first year in office working to nominate a diverse group of judges to the federal bench, not just in race but also in professional expertise, and he has been reviewing possible high court candidates along the way. He has installed five Black women on federal appeals courts — where many high court justices come from — with three more nominations pending before the Senate. He’s had more judges confirmed in a year than any other president since Ronald Reagan.
As a senator, Biden spent years leading the Senate Judiciary Committee and so he’s quite familiar with the nomination process, having overseen six Supreme Court confirmation hearings. One person who will be central to Biden’s selection process is chief of staff Ron Klain, a former Supreme Court law clerk and chief counsel to the Judiciary Committee.
He promised a rigorous selection process. As part of it, Biden’s team will review past writings, public remarks and decisions, learn the life stories of the candidates and interview them and people who know them. Background checks will be updated and candidates may be asked about their health — it’s after all a lifetime appointment. The goal, according to people involved with past nominations, is to provide the president with the utmost confidence in the eventual pick’s judicial philosophy, fitness for the court and preparation for the high-stakes confirmation fight.
He has already met personally with at least one top nominee, Ketanji Brown Jackson, 51. She is a former Breyer clerk who worked at the U.S. Sentencing Commission and has been a federal trial court judge since 2013 in the District of Columbia. The two met when Biden interviewed her for her current post as an appeals court judge in the D.C. circuit, where she has served since last June.
Early discussions about a successor are focusing on Jackson, U.S. District Judge J. Michelle Childs and California Supreme Court Justice Leondra Kruger, according to people familiar with the matter who spoke on condition of anonymity to discuss White House deliberations. Jackson and Kruger have long been seen as possible nominees.
Childs, a federal judge in South Carolina, has been nominated but not yet confirmed to serve on the U.S. Court of Appeals for the District of Columbia Circuit. She is a favorite of House Majority Whip Jim Clyburn, one of Biden’s top congressional allies, who said Thursday she had “everything I think it takes to be a great justice.”
Kruger, a graduate of Harvard and of Yale’s law school, was previously a Supreme Court clerk and has argued a dozen cases before the justices as a lawyer for the federal government.
Biden is also looking at Minnesota U.S. District Court Judge Wilhelmina Wright, the only jurist in Minnesota’s history to serve in the state district court, appellate court and state Supreme Court. And New York University Law Professor Melissa Murray, an expert in family law and reproductive rights justice, is also under consideration.
He’s personally interviewed a few other possible candidates during their recent appointments, including Eunice Lee and Candace Jackson-Akiwumi. Both women have experience as criminal defense attorneys and could diversify the range of legal expertise on the high court, where many of the judges came from prosecutorial jobs or academia.
In the Roosevelt Room on Thursday, Biden spoke wistfully about presiding over Breyer’s ascent to the court in 1994. He praised the justice’s legacy and highlighted Breyer’s opinions on reproductive rights, health care and voting rights, calling him “sensitive and nuanced.”
Breyer, in brief remarks, praised the “miracle” of America’s constitutional democracy and issued a reminder to a nation riven by partisan discord and last year’s insurrection at the U.S. Capitol that the government “experiment” is not yet over.
“This is a complicated country,” he said, leaning onto the lectern. He added: “People have come to accept this Constitution, and they’ve come to accept the importance of a rule of law.”
Recounting a subject of frequent talks with students, the outgoing justice noted that in the nation’s earliest days, European powers doubted it could survive, and during the horrors of the Civil War it appeared the United States might not make it.
“They’re looking over here and they’re saying it’s a great idea in principle, that it’ll never work,” Breyer said. “But we’ll show them it does. That’s what Washington thought, and that’s what Lincoln thought, and that’s what people still think today.”
“It’s an experiment that’s still going on,” he added, saying future generations will see if the government can live up to its promise. “They’ll determine whether the experiment still works. And of course, I’m an optimist, and I’m pretty sure it will.”
Even with Democrats controlling Congress, there’s no guarantee it will be easy; some of Biden’s top legislation has already stalled. One notable holdout on that legislation, Sen. Joe Manchin, D-W.Va., said on local West Virginia radio that he could support a justice more liberal than he is but it was most important to judge her character and whether she can be fair.
Senate Majority Leader Chuck Schumer, D-N.Y., praised Breyer’s career and said the Senate would have a “fair process that moves quickly so we can confirm President Biden’s nominee to fill Justice Breyer’s seat as soon as possible.”
Republicans who changed the Senate rules during the Trump era to allow simple majority confirmation of Supreme Court nominees appear resigned to the outcome in the 50-50 split chamber. Minority Leader Mitch McConnell, R-Ky., said he hoped Biden would not “outsource this important decision to the radical left.”
Iowa Sen. Chuck Grassley, the top Republican on the Senate Judiciary Committee, said after Breyer’s announcement that his successor “should be an individual within the legal mainstream who can receive similar broad, bipartisan support.”
Grassley voted against Jackson’s confirmation to the U.S. Court of Appeals for the District of Columbia Circuit, as well as most other Biden appellate court nominees.