Alongside President Biden, Supreme Court Justice Stephen Breyer announced his intent to retire at the end of the term on Thursday at a White House press conference. Proceeding Breyer’s retirement announcement, Biden declared that he would nominate a Black woman to succeed the outgoing justice.
The 83-year-old justice was appointed by President Bill Clinton in April of 1994 to succeed the retiring Justice Harry Blackmun and will have served on the nation’s highest bench for 28 years by the end of this term. Justice Breyer received a bachelor’s degree from Stanford University in 1959, a second from Magdalen College at Oxford University in the United Kingdom in 1961 and a law degree from Harvard in 1964. In this time, Breyer spent 8 years in the Army Reserves and 6 months in the Army Strategic Intelligence, earning the rank of Corporal.
After serving as a renowned professor at Harvard University and visiting professor at numerous academic institutions, within the U.S. and internationally, Breyer officially began his judicial career in 1980 after his nomination by then-President Jimmy Carter to serve as Judge of the United States Court of Appeals for the First Circuit, eventually becoming Chief Judge of the First Circuit before his nomination and appointment to the Supreme Court in 1994.
Since President Biden assumed office in January of 2021, Breyer has faced immense pressure from Democrats and progressives to vacate his seat prior to the upcoming midterms so that Biden has the opportunity to make a judicial appointment of his own. Given that Democrats hold a 50-50, Vice President Harris tie-breaking majority in Congress, Republicans do not have a viable opportunity to block any appointment being made, an advantage which will presumably evaporate this November.
The congressional strategies going into the nomination/appointment process are “interesting,” according to Dr. Joshua Wilson, professor and Chair of the Political Science department at the University of Denver. Professor Wilson was “surprised at the speed in which Democrats are trying to get this done…Schumer essentially wants to achieve this under the Amy Coney Barrett timeline.”
Professor Wilson is referencing the process Justice Amy Coney Barrett endured, whose nomination/confirmation process took less than a month, as President Trump and Republicans sought to fill the vacant seat preceded by the late Justice Ruth Bader Ginsburg before the 2020 presidential elections. Given that Biden has approximately 9 months to nominate and confirm Breyer’s successor ahead of the midterms, some could see Schumer’s strategy as nothing more than a political play against Republicans; an “eye for an eye.”
Professor Wilson expresses concern over this strategy, fearing that it unnecessarily normalizes such an expeditious timeline for nominating and confirming a justice to the Supreme Court. When analyzing the Republicans’ limited strategy in this process, Wilson says that Republicans essentially don’t have the ability to block a Biden nominee, particularly pointing to how “Republicans took their feet out from under them after getting rid of the filibuster in 2017 to confirm Neil Gorsuch to the Supreme Court.”
He asserts, nonetheless, “Republicans will try and impact the Democrats as best they can…and attempt to stoke fear over the appointee.” However, he expects the proceedings to move along in a more productive and normative way, without the fireworks we have seen much of in the last several appointment/confirmation processes.
Having analyzed the incoming strategies of both parties, who is President Biden looking to nominate to succeed Justice Breyer? Having announced that he will nominate a black woman to fill the seat, a short-list of three frontrunners has been established and widely disseminated.
First, there is Ketanji Brown Jackson, an attorney and D.C. Circuit Judge with degrees from Harvard University and Harvard Law School. Judge Jackson has stood out as a frontrunner amongst the most circulated names as President Biden appointed her to serve as a judge in the U.S. Court of Appeals for the District of Columbia in June of 2021, through which she has already undergone an extensive vetting process including an interview with Biden himself, which is complemented with her experience having clerked for the outgoing Justice Breyer. Before serving as a D.C. Circuit Judge, Jackson served as a D.C. District Court Judge and as Vice-Chair of the U.S. Sentencing Commission, both positions President Obama had appointed her to serve in.
Second, Leondra Kruger, who was the youngest appointed California Supreme Court Associate Justice in the state’s history at the age of 39 in 2015. She earned her bachelor’s degree from Harvard University and received her law degree from Yale University. Whilst she has not endured the meticulous vetting Judge Jackson already has under her belt, Justice Kruger clerked for the late Supreme Court Justice John Paul Stevens and served as the Acting Deputy Solicitor General under the Obama Administration from May of 2010 to June of 2011. While at the Justice Department, Kruger earned the Attorney General’s Award for Exceptional Service in 2013 and 2014.
Lastly, there is Julianna Michelle Childs. Childs is a Judge of the U.S. District Court for the District of South Carolina, having been appointed to the seat by President Obama in August of 2010. She earned her bachelor’s degree from the University of Florida and attained law degrees from the University of South Carolina School of Law and Duke University. Childs spent an extensive amount of time in private practice, eventually serving as partner for Nexen Pruet, LLC, a prominent law firm in the state of South Carolina. She has a fervent cheerleader in House Majority Whip James Clyburn, the third-ranking Democrat in the U.S. House of Representatives who represents South Carolina’s 6th congressional district.
Aside from the short-list of front-runners, Biden-appointee Eunice C. Lee, a former professor and director of recruitment and outreach at the Office of the Appellate Defender and currently serving as a Judge of the U.S. Court of Appeals for the Second Circuit, as well as Biden-appointee Candace Jackson-Akiwumi, a former professor and law firm partner currently serving as Judge of the U.S. Court of Appeals for the Seventh Circuit, have emerged as strong potential candidates to fill the vacancy.
When asked about what Justice Breyer’s lasting legacy will be, Professor Wilson expressed there are many ways to think about what the outgoing justice represents.
“One thing that comes to mind is how he is one of the last consensus nominees. That is, he was the last Supreme Court nominee to win the support of an overwhelming majority of Congress,” Wilson said.
This, given the extreme competitiveness and divisiveness that is now embedded in Supreme Court appointment/confirmation processes, is, unfortunately, an all too unfamiliar if not completely absent sight for this modern generation.
“Looking at Justice Breyer as a Justice, he will likely be remembered as a progressive who offered robust counters to ascendant conservative ideas about how to interpret the constitution. He authored opinions on some of the hottest hot button issues to come to the court. His work to defend progressive positions on abortion rights and campaign finance, however, set the stage for what the current court is actively working to undo,” Wilson said.
