Joe Biden’s summer is starting to look brighter. With widespread media reports that Justice Stephen Breyer will retire from the U.S. Supreme Court at the end of the current term, the President may have an opportunity to take a major step in his goal to build a more diverse federal judiciary.
Biden pledged on the campaign trail that he would nominate the first Black woman to the Supreme Court, and on Wednesday—before the Supreme Court or the White House publicly confirmed Breyer’s plans—Democrats were already pressuring Biden to keep his promise.
The calls came from progressive groups and sitting lawmakers alike. “Biden will get a chance to make history by putting the first Black woman on SCOTUS,” tweeted Brian Fallon, executive director of Demand Justice, a progressive judicial advocacy group. “.@POTUS you promised us a Black woman on the Supreme Court. Let’s see it happen,” tweeted Rep. Jamaal Bowman, a Democrat from New York.
“I support @POTUS’s pledge to nominate the first Black woman to the Supreme Court,” tweeted Sen. Patty Murray, a Democrat from Washington whose vote Biden will need on his nominee in an evenly divided Senate. “The Court should reflect the diversity of our country.”
Biden has already nominated a diverse array of judges to the federal bench. He’s had 40 district and appellate judges confirmed by the Senate in 2021—the most for a new president in decades. His nominees included the first openly LGBTQ woman to serve on a federal circuit and first Muslim American federal judge, and he has named more Black women to circuit courts than any of his predecessors. Nominating the first Black woman Justice could ensure diversifying the federal judiciary is one of his defining legacies as President: only two Black Americans, Justices Thurgood Marshall and Clarence Thomas, have served on the Supreme Court, and Justice Sonia Sotomayor, who is Latina, is the only only woman of color to ever sit on the highest court in the country.
“Both the Democratic base and Democratic leaders genuinely care about improving racial diversity, and appointing a Black woman to the Supreme Court would be a historic step in that direction,” says Scott Anderson, senior editor at Lawfare who served in the State Department under President Barack Obama. “The Democratic base also views these sorts of historic milestones favorably, and it will give Biden—and Democrats more generally—an important accomplishment they can put forward to voters.”
Biden “certainly stands by” his pledge to nominate a Black woman to the Supreme Court, White House Press Secretary Jen Psaki said Wednesday. She would not confirm whether Breyer plans to step down, and the White House and the Supreme Court did not respond to TIME’s requests for comment.
Former President Donald Trump had enormous success seating conservative judges—who tended to be white and male—confirming over 230 federal judges and three Supreme Court justices in just four years. On the campaign trail, Biden pledged to push back with more diverse nominees, and he ramped up those efforts early in his term. “He feels this personally,” a White House lawyer with knowledge of the nominations process told TIME back in May. “His commitment to these issues really goes back decades.”
Numerous legal experts say they expect Biden will keep his campaign promise and nominate a Black woman to replace Breyer, and many view Judge Ketanji Brown Jackson as a top contender for the position. Jackson, who clerked for Breyer, was confirmed to the U.S. Court of Appeals for the District of Columbia in June to replace Attorney General Merrick Garland.
Any nominee will need likely need the approval of every Democrat in the Senate, including West Virginia Sen. Joe Manchin and Arizona Sen. Kyrsten Sinema, who have jettisoned progressive hopes to pass Biden’s Build Back Better social spending plan and tanked voting-rights reform bills by refusing to do away with the Senate filibuster. Jackson could win their approval. She was confirmed to the D.C. Circuit last year by 53 votes in the Senate, including all Democrats and Republican Sens. Lisa Murkowski of Alaska, Susan Collins of Maine and Lindsey Graham of South Carolina. Several legal experts tell TIME they think a history of bipartisan support from Republicans may be key for a nominee.
Another name potentially in the mix is California Supreme Court Justice Leondra Kruger, who clerked for Justice John Paul Stevens and has a long career as an appellate litigator. Legal experts, including those that served on the White House’s Supreme Court reform commission, have also floated NAACP Legal Defense Fund President Sherrilyn Ifill, recently confirmed Ninth Circuit Judge Holly Thomas, NYU Law professor Melissa Murray, and The New Jim Crow author and law professor Michelle Alexander.
“President Biden won this election, in part, due to the efforts of Black women who worked tirelessly on his behalf,” says Murray. “They will expect him to honor this promise. And he will need them as he presses his domestic agenda and prepares for 2024.” (When asked about her name being in the mix, Murray replied, “It is very flattering to be mentioned alongside such distinguished lawyers, some of whom are friends and much-admired colleagues. But I won’t be getting measured for robes any time soon!”)
Biden’s choice could unite Democrats in an election year when the party is expected to lose seats in Congress in the midterms. “This opening comes at an opportune time with Biden’s approval numbers declining and Democrats downright depressed about the party’s midterm prospects,” says Bertrall Ross, a law professor at University of Virginia Law School who served on Biden’s Supreme Court reform commission. Rick Pildes, a professor at NYU law school who also served on the commission, adds that despite “internal fractures within each party, the stakes in these appointments are perceived to be so high that the parties rally around the President’s choice once it has been made.”
If Biden gets a Justice confirmed later this year it could secure the seat for a liberal justice for decades to come, but it would not impact the ideological balance of the Supreme Court, which currently has a 6-3 conservative supermajority.
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