Supreme Court Justice Stephen Breyer will finally, finally be retiring at a pivotal moment for, well, just about every human rights issue you could name. Since his announcement Wednesday morning, everyone has ideas about who should replace him, with many urging President Biden to fulfill his campaign promise to nominate a Black woman to the nation’s highest court.
There’s really no excuse for Biden not to nominate the first Black woman to SCOTUS, given how many frankly over-qualified individuals he could choose from. Though the president supposedly had a shortlist of candidates by Inauguration Day last year, it’s anyone’s guess who can make it through the wringer of a 50-50 Senate. As one person whose name is supposed to be on the shortlist told New York back in December: “Every Black woman under the age of 50 is under consideration.”
Biden’s promise to appoint a Black woman to the Supreme Court is especially important considering the court’s long history of decisions rooted in interwoven racism and misogyny, particularly targeting Black women. But a candidate’s race, sadly, isn’t nearly as critical as her age. Donald Trump was able to appoint three justices to lifetime appointments all before they turned 55. Unless substantial Supreme Court reforms are installed, adding a young legal scholar will be critical to seeing liberal and left-leaning interpretations of the law for decades to come.
Amid the deluge of right-wing conspiracies about who Biden might nominate, some conservatives have peddled the bizarre theory (without evidence) that he’ll nominate Vice President Kamala Harris. Speculation like this might continue well until the president actually names his pick, which could come at any time but will likely be at the end of the term. Until then, here’s what you need to know about the Black women said to be on Biden’s shortlist.
Sherrilyn Ifill is the current president of the Thurgood Marshall-founded NAACP Legal Defense and Education Fund and a law professor, with an extensive background in litigating cases for voting rights. Ifill, who received her JD from New York University School of Law, notably worked on the landmark 1991 case Houston Lawyers’ Association vs. Attorney General of Texas, in which the Supreme Court ruled that judicial elections are covered in the Voting Rights Act. Ifill’s scholarly writing, legal analysis, and books like On the Courthouse Lawn: Confronting the Legacy of Lynching in the 21st Century reflect on her years of legal advocacy for racial justice and civil rights, and the importance of diversity in the judicial branch. Ifill announced last year that she would step down from her position heading the NAACP Legal Defense and Education Fund this spring to work on her next book. She has an unusually large social media following for a potential Supreme Court nominee, and, as a widely popular choice to replace Breyer, she could soon be taking on a lot more than tweeting and book-writing.
U.S. Court of Appeals for the District of Columbia Circuit Judge Ketanji Brown Jackson is another prospect for Breyer’s seat after years of serving in the federal judiciary. A former public defender for indigent clients, Jackson also clerked for Breyer and two other federal judges before joining the U.S. Sentencing Commission as it reduced the cruel and long legal penalties for crack cocaine. She would be the first former public defender to sit on the bench in half a century, at least; usually justices are prosecutors, like Sonia Sotomayor or Samuel Alito. She was raised in Miami, Florida, and received her B.A. and J.D. from Harvard, which means she joins the pantheon of Ivy League graduates serving on the Supreme Court. Jackson, who joined the appellate court after Merrick Garland resigned to serve as Biden’s Attorney General, has issued opinions on a wide range of legal issues, including civil rights, constitutional and criminal law and regulatory issues.
At just 45 years old, Kruger is an Associate Justice of the Supreme Court of California, becoming the second Black woman to sit on the state Supreme Court after former Gov. Jerry Brown nominated her in 2014. Before that, she served as the principal deputy solicitor general of the United States during the Obama administration, for which she received the Attorney General’s Award for Exceptional Service—the department’s highest award for employee performance. Prior to these positions, Kruger clerked for the liberal-leaning Supreme Court Justice John Paul Stevens from 2003 until 2004, and is said to be part of “an emerging liberal majority” on the California Supreme Court, where she takes “an incremental approach to jurisprudence,” Kruger is also Jewish, and if she replaced Breyer, she would take a seat that’s historically been filled by a Jewish Justice for the last 100 years. While her name has long been floating as a potential Biden SCOTUS pick, it’s worth noting that according to some reports, she twice rejected the position of U.S. solicitor general in the Biden administration.
US district judge of the District Court for the District of South Carolina Michelle Childs has served in her role since 2010, and is currently a nominee to become a US Circuit Judge of the US Court of Appeals for the District of Columbia Circuit. Childs previously served as a Circuit Court Judge in Columbia, South Carolina, and earned her JD from the University of South Carolina. She’s also worked extensively in employment and labor law in support of workers: From 2000 to 2002, Childs was the deputy director of the division of labor with the South Carolina Department of Labor, Licensing, and Regulation, during the administration of former Democratic Gov. Jim Hodges. After that, from 2002 to 2006, Childs served as a commissioner on the South Carolina Workers’ Compensation Commission, and notably helped compile the Restatement of the Law Third: Employment Law, an influential treatise on labor rights published in 2015. Childs’ nomination would certainly be timely at this critical moment for American labor amid the ongoing Great Recession, or the mass exodus of many low-wage workers from exploitative jobs.