President Joe Biden promised during his election campaign if he needed to fill a U.S. Supreme Court vacancy during his presidency, he would nominate a Black woman. There are several highly qualified Black, female judges and lawyers who could be shortlisted for the position.
Renee Knake Jefferson is professor of law and the Joanne and Larry Doherty Chair in Legal Ethics at the University of Houston. She’s also coauthor of the book “Shortlisted: Women in the Shadows of the Supreme Court”.
The name that has been coming up the most since news of Justice Breyer’s retirement on Wednesday is Ketanji Brown Jackson. Jackson currently serves on the D.C. Court of Appeals. Other names that have been floated are: J Michelle Childs, who is a judge of the United States District Court for the District of South Carolina, and Justice Leondra R. Kruger, who serves on the California Supreme Court.
“I think ultimately, we will see confirmation hearings happen and the next justice will be confirmed and she will be a Black woman,” Jefferson said. “And it will be really exciting to see who among this extraordinary pool of highly qualified women is selected.”
Listen to the interview above or read the transcript.
This transcript has been edited lightly for clarity:
Texas Standard: First, perhaps some thoughts on Justice Breyer’s tenure on the Supreme Court.
Renee Knake Jefferson: Well, he’s had an incredible career on the Supreme Court – very long, long spanning. In fact, when he was appointed many, many years ago another justices that could have been in his place was on the shortlist. She’s actually a judge on the Second Circuit Court of Appeals today. Her name is Amalya Kearse. And to me, that’s so interesting because she is a Black woman. And I make that point because we could have had a Black woman on the Supreme Court – highly qualified – for decades. And so it wasn’t lost on me when President Biden promised to put a Black woman on the court that it might very well be Justice Breyer’s seat she would take. And as it turns out, that looks like it’s going to be the case.
Speaking of short lists, let’s talk about who you believe might be on such a list. What names come to mind?
The name that I think is at the top of everyone’s list, although I will point out most folks have a long list. There are many highly qualified Black women who could take that seat. But the woman who keeps being repeated at the top is Ketanji Brown Jackson. She is currently serving on the D.C. Court of Appeals, and I think part of why she is at the top of everyone’s list is she just was successfully confirmed by this very Senate last year. And so it would be very difficult for any senator to now suddenly say, ‘Oh, I voted for her a year ago, but she’s no longer qualified.’
And importantly, she received bipartisan support. Three Republicans did vote to confirm her. She also clerked for Justice Breyer. So there’s this nice legacy there that one of his former clerks would be taking his seat in his retirement. And she is an interesting selection, too, because she has a traditional pedigree in the sense that she went to Harvard Law School, but also offer some diversity beyond her race and her gender, in that among the roles she has held in her career, she was a federal public defender, which would offer a very different perspective than what other justices on the court currently do.
I have also heard names J. Michelle Childs. Are you familiar with her?
Yes. And interestingly, she’s about to face a Senate confirmation for the D.C. Circuit Court of Appeals herself. I believe she’s scheduled to go into the Senate confirmation hearings on February 1. It’ll be interesting to see if that shifts. She currently serves on a federal district court, and absolutely would be another very strong candidate and choice.
Someone who serves on the California Supreme Court is Justice Leondra R. Kruger. What do you know about her? She’s frequently discussed as a contender here.
Yes, and another incredible option. I mean, it’s too bad Biden is facing multiple vacancies right now because there is an embarrassment of riches to fill the seat. She also clerked for the court – Justice John Paul Stevens. She’s a graduate of Yale Law School, so again, she has some of the more traditional things that the recent appointees to the court have had. And of course, now she’s serving on the California Supreme Court and would be another wonderful option.
Any other names we should mention here as we as we talk about possible choices?
Well, I think it’s important to also consider incredibly strong lawyers who haven’t yet served as judges. It’s entirely possible for someone to go on the Supreme Court without having been a judge before. In fact, Justice Elena Kagan would be an example of that. And so I would also say we should be looking at Sherrilyn Ifill. She’s the head of the NAACP Legal Defense Fund. Much like Justice Thurgood Marshall, she would be bringing an incredible career of civil rights advocacy.
I was reading. I was reading some comments in the New York Times after the announcement that Breyer would be stepping down. Rev. Al Sharpton said that this choice could very well help Mr. Biden win back trust with a number of voters – be a significant win, in other words, for an administration that, I think a lot of his supporters feel somewhat dejected after what happened with some of his other initiatives, especially his social spending, for example. What’s your take on that?
Well, I agree this is absolutely an opportunity for Biden to deliver on a campaign promise, and I also think it’s much more than that. With this appointment, he will be fundamentally changing the course of history. The presence of a Black woman on the Supreme Court infuses institutional legitimacy by shaping the court to more accurately reflect the public it serves. She will inspire the next generation of young Black girls to become lawyers and judges and to reach for the ultimate pinnacle in their chosen professions. And so this is an important moment for President Biden for all of those reasons.
What sort of resistance do you expect to see from the U.S. Senate?
There will be some maneuvering. I am sure, to delay this as long as possible. But I think ultimately we will see confirmation hearings happen and the next justice will be confirmed and she will be a Black woman. And it will be really exciting to see who among this extraordinary pool of highly qualified women is selected.