A shortlist of potential nominees to replace Breyer on the Supreme Court
We know that his nominee will almost certainly be a woman. In 2020, then-candidate Biden vowed that he would respond to a Supreme Court opening by nominating a Black woman. Dozens of candidates are being talked about, but nearly all of the Court watchers I interviewed for this story have their money on one in particular: Ketanji Brown Jackson.
Jackson, who is 51, fulfills a lot of requirements for the establishment set. She has the same Ivy League credentials as the sitting justices, having earned both her undergraduate and her law degree from Harvard and edited for the
Harvard Law Review. She clerked for three federal judges—including Breyer, from 1999 to 2000. If nominated and confirmed, Jackson will follow the same track as Brett Kavanaugh, who also
clerked for the justice he ultimately replaced. Also like Kavanaugh—and seven other current and former justices—Jackson would be coming directly from the D.C. Circuit Court of Appeals, the second-most important court in the country after the Supreme Court.
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Although Jackson appears to be the leading contender for Breyer’s seat, other candidates will receive serious consideration. Leondra Kruger, an associate justice on the California Supreme Court, is seen as the top choice for Democrats who’d like Biden to pick someone outside the Beltway. Kruger, who clerked for the late Justice John Paul Stevens, argued 12 cases before the U.S. Supreme Court as an assistant to the U.S. solicitor general. In her seven years on the California Supreme Court, she’s been a swing vote,
siding with the more conservative justices on several key decisions. She is only 45, which suggests that she could serve on the bench for several decades. But that could also make her appointment seem less urgent to Biden. “The expiration date on Jackson as a SCOTUS nominee is much closer,” David Lat, the founder of the website Above the Law, told me. Biden “can always nominate Kruger for another vacancy” later on.