An upcoming vacancy on the Supreme Court of the United States will offer President Joe Biden his first opportunity to appoint a new justice to the Court.
On January 27, 2022, Justice Stephen Breyer announced that he would retire from the Supreme Court this summer, provided that a replacement has been appointed and confirmed by that time. Justice Breyer, 83, was appointed to the Court by President Bill Clinton in 1994. He has been a reliably liberal vote on the Court; Planned Parenthood has called him a “champion for civil and reproductive rights.” Due to his advanced age, and due to concerns that the Republican Party could retake control of the U.S. Senate following the November 2022 midterm elections and could potentially block future Supreme Court nominations made by President Biden, Justice Breyer has been pressured to retire by voices on the political left. President Biden is expected to choose a Supreme Court nominee by the end of February.
During the 2020 presidential campaign, then-candidate Biden pledged that if given the opportunity to nominate a Supreme Court justice, he would nominate an African-American woman; the President recently reiterated this pledge. There are two problems with the President’s pledge. First, just as it would be wrong to discriminate on the basis of race by insisting on a white appointee to the Court, it is wrong for President Biden to discriminate on the basis of race in the opposite direction. Righting the wrong of racial discrimination does not mean engaging in new racial discrimination in an effort to manufacture racial balance. [Incidentally, conservatives should remember that in 2020, it was President Donald Trump who announced that he would nominate a woman to fill the seat left vacant by the passing of Justice Ruth Bader Ginsburg. President Trump went on to nominate Justice Amy Coney Barrett to the High Court.] Regardless of political affiliation, presidents should appoint Supreme Court justices on the basis of merit; demographic considerations should be irrelevant. Second, President Biden’s pledge has dramatically limited the pool of potential Court nominees. When selecting Supreme Court nominees, presidents typically choose federal appeals court judges; eight of the nine justices currently serving on the Court were once federal appeals court judges. However, the female African-American judges presently serving in the federal appeals courts either are senior citizens or are relatively inexperienced, having served in their current roles for less than a year.
While several attorneys and judges have been mentioned as potential Biden Supreme Court nominees, one judge appears to be the frontrunner. Judge Ketanji Brown Jackson has served on the U.S. Court of Appeals for the D.C. Circuit since last year. Previously, she served for eight years as a judge on the United States District Court for the District of Columbia. Judge Jackson graduated cum laude from Harvard Law School, where she served on the Harvard Law Review. She has experience in private practice, as an assistant special counsel to the United States Sentencing Commission, as an assistant federal public defender, and as an appeals litigator. Like Justice Breyer, Judge Jackson would be a reliable liberal vote on the Court; nevertheless, if nominated, she is likely to be confirmed with bipartisan support.