As a brief respite from the myriad political issues related to Trump’s final days in office, I needed to consider the future for just a moment. Specifically, I started looking at the future of the Supreme Court. With a Democratic President and a (barely) Democratic Senate, one might expect Biden to have the opportunity to leave a lasting mark on the nation’s highest court.
Yeah, not so much. I probably should have picked a different topic to distract me. But here we are.
The unfortunate reality is that the recent Republican-forced seating of the far-right Amy Coney Barrett to replace liberal icon Ruth Bader Ginsburg cannot be easily tempered.
Six of the current members of the Court are under 70 and are unlikely to willingly leave the Court in the next decade. Since there is nowhere near a majority of Congress inclined to expand the court, that leaves three possible vacancies within any reasonable planning horizon.
The only justice likely to retire anytime soon is Stephen Breyer. At 82, he is by far the oldest current Supreme Court Justice and he has vaguely indicated that he might soon depart the bench. However, as a liberal-leaning moderate, any Biden replacement for Breyer would have little impact on case outcomes. (That’s not to say that Breyer wouldn’t be missed on the Court. His pragmatic judicial philosophy has been an effective counterpoint to the textualists on the right.)
The next two oldest justices – Clarence Thomas (72) and Samuel Alito (70) – are wildly conservative. In fact, since there is seldom any daylight between their judicial opinions and the prevailing far-right political positions of the Republican party, let’s just go ahead and call them partisan Republicans. Replacing either of them with a more liberal justice would definitely impact the vote count on many rulings. Replacing both of them would tilt the court itself – but that’s an unlikely scenario.
Neither Thomas nor Alito will voluntarily retire while a Democrat is in the White House. Since all of the current Justices appear to be in good health, additional vacancies are unlikely even if Democrats manage to retain control of the Presidency and the Senate for eight years.
The probable best that Biden can do from a numbers perspective is to not make the math any worse than it currently is. That said, Biden can still have an impact with the possible replacement for Breyer. Two primary criteria for consideration seem appropriate to me and Biden has already announced a separate criteria.
The most obvious criteria is intellect. While Breyer is a excellent jurist, he is not in the same heavyweight category in which Ginsburg resided. Many of Ginsburg’s oral arguments and written opinions – even when in the minority – were transformative to American jurisprudence. What the Supreme Court needs is an intellectual giant to lead the left as John Roberts leads the right. (As an aside, while I often disagree with Roberts, I respect his intellect and accept that most of his rulings come from a sincere – if misguided – judicial philosophy and not from a purely political or personal point of view.)
In addition to a brilliant mind, any new justice must be relatively young. While it would be tempting to nominate someone with considerable experience, it is more important to select someone who can defend their positions on the Supreme Court through multiple administrations. Barrett is only 48 and could serve in the neighborhood of three decades. God help us.
One assumes that intellect and youth are already in the job description for Biden’s possible Supreme Court pick. However, his only announced criteria is an intention to nominate a black woman. While I applaud the concept of diversity on the Court, I simply don’t believe that gender or race should be litmus tests for initial consideration. Please hear me out before you send the email you just started.
For policy-oriented positions such as Congressional seats and Cabinet appointments, diversity should be a paramount concern. Government needs to consider the impact of the laws they write from multiple perspectives and the “old, straight, white, Protestant male” point-of-view is already sufficiently represented. Supreme Court justices, however, should not be determining policy or writing laws. Their job, as Roberts once stated, is “to call balls and strikes and not to pitch or bat.”
As such, it would seem much more important to have competing judicial philosophies well-represented on the Court rather than to give much consideration at all to the Court’s demographics. Would a black woman bring a different perspective than a white male? Of course. Both are humans with different life experiences. However, if either the black woman or the white male are basing their rulings on their own worldviews, then she or he doesn’t belong on the Supreme Court.
While Liberal, Conservative, and Moderate are handy generic labels when discussing the makeup of the Supreme Court, judicial philosophies such as Originalist, Textualist, Intentionalist, Purposivist, Pragmatist, etc. are much more useful. Since my layman’s interest in judicial philosophies doesn’t make me a Constitutional scholar, I’ll simply stick with the generic labels. In any case, though, labels such as Black, Brown, White, Male, Female, Republican, and Democrat should be irrelevant in most instances.
I add the “in most instances” qualifier to account for the political aspects of Senate confirmation. As the most recent example, President Obama made a tactical error with his final Supreme Court nomination. While Merrick Garland was perceived to be a moderate pick that might be acceptable to Senate Republicans, it turned out that a complete Republican blockade of his consideration produced zero political fallout. Imagine, however, if Obama had nominated a very qualified moderate black woman to the Court. McConnell and Crew would have had a very tough time refusing to even give her a hearing and, if brought to a vote, she could well have been confirmed.
Certainly, all things being equal, it would be highly desirable to have a demographically diverse Court purely from the standpoint of outside perception. I only contend that such diversity should be a secondary consideration. However, since the pick is Biden’s to make, an initial “black woman” filter considerably narrows the potential candidate list. The obvious first place to look for a Supreme Court candidate is within the federal appellate courts. Unfortunately, there are only four black women currently on those courts and all are over 65. Still, there are some good choices elsewhere:
- Leondra Kruger (44): California State Supreme Court Justice. Former clerk for John Paul Stevens, assistant U.S. solicitor general who has argued multiple cases before the Supreme Court, & deputy assistant AG for the Office of Legal Counsel in the Obama administration. Yale Law. She is the most likely nominee but is perhaps just a bit too moderate for some given that Democrats should be able to confirm any liberal they want.
- Ketanji Brown Jackson (50): Federal District Court Judge. Former clerk to Stephen Breyer, public defender, and Vice Chair of the U.S. Sentencing Commission. Harvard Law. She is currently the leading candidate to replace Garland on the D.C. federal appeals court after Garland is confirmed as Biden’s Attorney General.
- Leslie Abrams Gardner (46): U.S. District Judge in Georgia. Former Assistant U.S. Attorney. Yale Law. In addition to her own stellar reputation, she is the sister of Stacey Abrams, who had a large part in the 2020 Democratic wins in Georgia.
- Melissa Murray (46): NYU Law Professor. Former clerk for Sonia Sotomayor. Yale Law.
- Elise Boddie (53): Rutgers Law Professor. Former Director of Litigation, NAACP Legal Defense Fund & Founder of The Inclusion Project. Harvard Law.
- Anita Hill (64): Professor at Brandeis. Yale Law. Okay, sure, this isn’t going to happen. But wouldn’t it just be a whole lot of fun to put her on the Supreme Court alongside Clarence Thomas?
My first choice, however, may be just a tad too old, isn’t a black woman, and likely wouldn’t take the job if it were offered. Regardless, I’d love to see Biden nominate Barack Obama to the Supreme Court. It’s been done before – William Howard Taft served as Chief Justice after his Presidency. Obama is a Constitutional scholar with the ability to write opinions for the ages and a Justice Obama would be almost as entertaining as a Justice Hill.