The three women topping the list offer varying combinations of traditional educational and career credentials and also would bring unique life experiences and professional backgrounds to the court. Each would also offer openings for opponents to exploit, though perhaps not enough to threaten confirmation.
Biden’s nominee won’t change the ideological tilt of the 6-3 conservative majority court, but would add a fourth woman to the bench and a second Black justice to a panel that is otherwise all White with the exception of one Latina.
Here are some considerations for Biden as he makes a decision that will affect the court’s future and his own political fortunes:
Ketanji Brown Jackson
Jackson “is the most eminently confirmable because she’s the most recently confirmed,” said
She offers the type of professional diversity that progressives crave and Biden has prioritized in his lower court nominations. Jackson is a former public defender and member of the U.S. Sentencing Commission, both jobs that no current justice has ever held.
Jackson also could have an influential backer in retiring Justice
During Jackson’s 2012 confirmation hearing to be a federal district judge in Washington, the city’s delegate to Congress said Breyer urged a vetting committee to recommend her.
“She is great, she is brilliant,” Delegate
CONS: Jackson doesn’t have any glaring weaknesses, but she would offer opponents multiple targets. As a federal district judge before her elevation to the D.C. Circuit, Jackson was involved in several high-profile cases involving then-President
She ruled in 2019 that former White House counsel
A three-judge D.C. Circuit panel set aside her ruling, though McGahn testified after reaching a settlement with the Biden administration.
The D.C. Circuit also tossed out her ruling that provisions in three Trump executive orders conflicted with federal employee rights to collective bargaining. Similarly, she was reversed after she blocked Trump’s Department of Homeland Security from expanding the categories of people who could be subject to expedited deportation.
PROS: Like Jackson,
She would offer her own form of diversity as a state court judge, something the Supreme Court hasn’t had since Justice
The Yale Law School graduate has developed a reputation as a careful and, at times, centrist jurist. That would be a selling point if the administration wants to attract Republican votes.
The Biden administration already offered her the post of solicitor general last year. She turned it down because “she thinks being a judge is what she’s meant to do in life,” said
The youngest of the three candidates, she could potentially serve on the Supreme Court years longer than Jackson or Childs. That could be important as Biden tries to leave a lasting imprint with what might be his only Supreme Court appointment.
“If they’re all otherwise equal, age can play a major factor,” Goldstein said.
CONS: Kruger’s decision to turn down the solicitor general position means she is the only one of the top three not to have gone through a Senate confirmation. That adds an element of risk when Democrats, who control the Senate only because of Vice President
Kruger’s relative moderation, particularly in criminal and business cases, could make her a less favored candidate for progressive groups that have been influential on Biden’s lower court nominations.
At the same time, conservatives are criticizing an argument she made as a government lawyer in a 2011 Supreme Court case. Kruger argued that the Constitution’s religion clauses don’t give faith-based employers a special exemption from job-discrimination laws. The stance drew strong pushback from across the court’s ideological spectrum, and the justices eventually rejected the argument unanimously.
Verrilli, who was Kruger’s boss at the time, says that he, not Kruger, decided to adopt that position and he now wishes he could take it back.
Kruger “argued the case because it was her job to argue the case,” Verrilli said. “I thought she handled that difficult situation extremely well.”
PROS: The South Carolina-based judge is backed by Representative
Childs, 55, has also drawn praise from South Carolina’s two Republican senators,
Graham and Scott both discussed the confirmation with Clyburn last week, and Scott told Bloomberg News after the meeting that Childs “has a strong record and is a strong candidate.”
Childs would add yet another form of diversity: A graduate of the University of South Carolina School of Law, Childs would be the first justice in decades to hail from a public institution. Eight of the current nine justices, all but Notre Dame Law School graduate
CONS: At 55, Childs is the oldest of the three top candidates and would be the oldest Supreme Court nominee since President
Childs’ current status as a federal trial judge could also work against her. She would also be the first federal district judge to be elevated directly to the Supreme Court since
And Childs is drawing resistance from some progressives and union leaders because of her work before she became a judge. As a lawyer at Nexsen Pruet in the 1990s, Childs defended companies, including
“The Democratic Party has historically been and wants to see itself as the party for working people,” said Jeff Hauser, the founder and director of the progressive Revolving Door Project. “And Childs rose in law initially as someone who represented employers against employees.”
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