Eric Davis: Biden considers high court options

The U.S. Supreme Court has finished hearing oral arguments for the 2020-21 term, and will issue opinions in those cases through late June or early July. The end of a Supreme Court term has become the time when justices intending to retire have announced their plans. Will Justice Stephen Breyer be announcing his retirement this summer?

Breyer, who turns 83 in August, is the oldest member of the court. Nominated by President Clinton, he has been a justice since 1994. Many Democrats, as well as progressive legal scholars, would like him to retire soon, so that President Biden and a Democratic Senate may nominate and confirm his successor before control of the Senate possibly changes in the 2022 midterms.

If Breyer were to announce his retirement in early summer, Biden could nominate a replacement before Labor Day, giving the Senate time to hold hearings and take a confirmation vote before the end of the year. When Justice Sandra Day O’Connor announced her retirement on July 1, 2005, she said that she would remain on the court until her successor had been nominated and confirmed by the Senate.

President George W. Bush first nominated White House Counsel Harriet Miers to replace O’Connor. Less than a month after being named, Miers withdrew as a nominee, in the face of concerns raised by senators of both parties that she was not well-qualified to sit on the Supreme Court. Bush then nominated federal appellate judge Samuel Alito, who was confirmed in January 2006.

Justice O’Connor remained on the bench for the seven months from the time she announced her retirement until Alito’s confirmation by the Senate. If Breyer were to retire on a similar schedule as O’Connor, there would be nine justices on the court even if the Senate were not able to confirm his successor before the start of the next Supreme Court term in October.

President Biden has said that he intends to nominate a Black woman to fill the next vacancy on the Supreme Court. If Breyer does retire, Biden will have to decide whether to nominate someone who is now a federal or state court judge, or whether to nominate someone who is not on the bench. The last justices who were not judges when confirmed were William Rehnquist, an assistant attorney general, and Lewis Powell, an attorney in private practice, both nominated by President Nixon and confirmed by the Senate in December 1971.

If Biden wishes to go the traditional route, two judges who will almost certainly be on his short list are Ketanji Brown Jackson and Leondra R. Kruger. Jackson currently sits on the U.S. District Court for the District of Columbia, and has been nominated for the U.S. Court of Appeals for D.C., to fill the seat formerly held by Attorney General Merrick Garland. Kruger is a justice on the California Supreme Court.

Like most recent Supreme Court nominees, Jackson and Kruger were both editors of the law review at top law schools (Jackson at Harvard, Kruger at Yale), and both served as clerks for Supreme Court Justices (Jackson for Breyer and Kruger for John Paul Stevens). Jackson, age 50, and Kruger, age 44, are among the leading attorneys of their generation.

If Biden wanted to nominate someone who is not currently serving as a judge, he could consider Sherrilyn Ifill, the president and director-counsel of the NAACP Legal Defense and Educational Fund. Former Supreme Court Justice Thurgood Marshall held this same position before becoming a federal judge. Ifill was an attorney for the LDF early in her career, then taught at the University of Maryland law school for 20 years. She rejoined the LDF as its director and chief counsel in 2013.

Breyer has said the courts should be as removed from politics as much as possible. Thus, he could resist the pressure to retire and decide to continue as a justice beyond the current term.

Eric L. Davis is professor emeritus of political science at Middlebury College.

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