Breyer’s seat may be the only one that Biden fills on the Supreme Court, and it may not be one he fills at all — if Republicans retake the Senate before the President’s choice for a replacement is confirmed.
The White House is stacked with officials deeply familiar with the confirmation process, starting with Biden himself — who chaired the Senate Judiciary Committee — as well as White House chief of staff Ron Klain, who has experience both at the White House counsel’s office and working for the Senate Judiciary Committee.
Here are potential nominees who have been on observers’ short list.
DC Circuit Judge Ketanji Brown Jackson
As a judge, Jackson has ruled on high profile cases including the Don McGahn congressional subpoena lawsuit (where, as a district court, she ordered the former Trump White House counsel to comply with the House’s subpoena). As an appellate judge, she signed on to the recent opinion ordering the disclosure of Trump White House documents being sought by the House January 6 committee — a case Trump has now asked the Supreme Court to review. If she is confirmed to the court while the justices were still considering the case, she’d likely be asked to recuse.
California Supreme Court Justice Leondra Kruger
Kruger, now 45, was the youngest person to be appointed to the California Supreme Court when then-Gov. Jerry Brown nominated her in 2014.
Kruger is intimately familiar with the Supreme Court having worked as a clerk for the late Justice John Paul Stevens and served as acting deputy solicitor general in the Obama administration. While in the Solicitor General’s office, she argued 12 cases in front of the Supreme Court representing the government. At the Justice Department, she also earned the Attorney General’s Award for Exceptional Service, the department’s highest award for employee performance, in 2013 and 2014.
At the California Supreme Court, she has authored notable opinions on the 4th Amendment — holding that law enforcement could not search a woman’s purse without a warrant after she declined to provide a driver’s license — and upholding a California law that requires law enforcement to collect DNA samples as well as fingerprints from all persons arrested for or convicted of felony offenses.
Though she is said to be well-liked among the alumni of the Solicitor General’s office, she has not yet received the thorough vetting that other potential nominees have gone through.
South Carolina US District Court Judge J. Michelle Childs
Childs, a judge on South Carolina’s federal court, is said to have a major booster in House Majority Whip James Clyburn, a Biden ally who helped deliver South Carolina for the eventual nominee in the 2020 Democratic primary. Just last month, Biden nominated Childs to the US Court of Appeals for the District of Columbia Circuit, and the nomination remains pending.
In addition to a decade spent in private practice, the 55-year-old served as a state court trial judge on the South Carolina Circuit, as the deputy director of the South Carolina Department of Labor, Licensing and Regulation, and as a commissioner on the South Carolina Workers’ Compensation Commission.
Other names that have been floated
District Judge Wilhelmina “Mimi” Wright, a judge on Minnesota’s federal district court whose consideration would likely please Sen. Amy Klobuchar, the Minnesota Democrat who sits on the Judiciary Committee.
Circuit Judge Eunice Lee, a former New York public defender whom Biden nominated to the Second Circuit on the recommendation of Senate Majority Leader Chuck Schumer.
Circuit Judge Candace Jackson-Akiwumi, an alumna of Chicago’s public defender’s office whose appointment by Biden to the Seventh Circuit was cheered by Senate Judiciary Chair Dick Durbin of Illinois.
Sherrilyn Ifill, a civil rights attorney who recently announced plans to step down from her role as President and Director-Counsel of the NAACP Legal Defense and Educational Fund.