Biden will announce his pick as early as Friday from a shortlist of three candidates, striking a balance between a nominee who appeases his base and one who could get more bipartisan traction.
President Joe Biden’s historic decision of whom to nominate as the first Black woman to serve on the Supreme Court is winding down after weeks of facing lobbying efforts and competing interests within his party. And with only a few days left before his end-of-the-month deadline, he could make the highly anticipated announcement as early as Friday.
Biden is entering the final stage after reportedly interviewing three candidates: D.C. Circuit Judge Ketanji Brown Jackson, U.S. District Judge J. Michelle Childs and California Supreme Court Justice Leondra Kruger. And while the White House has been light on details about the timing, the president is still on track to make it public by Monday the latest – even with the fallout of Russia’s invasion of Ukraine dominating his agenda. CNN reported Thursday night that he made a decision and an announcement could come on Friday.
As he prepares to announce his replacement for retiring Justice Stephen Breyer, Biden is seeking to strike a balance of choosing a nominee for a lifetime appointment that appeases his party’s base but also one who could get more bipartisan traction. While Childs has emerged as more of a consensus pick with some public Republican support, Jackson has a track record of getting GOP votes for a judicial nomination as recently as last summer.
Most Democratic lawmakers don’t have a preferred nominee – at least publicly – and progressive groups are starting to rally around Jackson in the final days. But some notable voices like House Majority Whip Jim Clyburn and even Republican Sen. Lindsey Graham are strongly pushing for Childs, who serves on the U.S. District Court in the lawmakers’ home state of South Carolina.
Meanwhile, manyprogressives and labor groups are raising major concerns over Childs due to her previous work representing management in labor disputes during her tenure at the law firm Nexsen Pruet.
Regardless of whom he chooses, Democrats want Biden to name a nominee who can quickly go through the confirmation process and pass a split 50-50 Senate that they narrow control until at least early January – and could possibly lose in the November midterm elections. Based on a rules change implemented by Republicans in 2017, the Senate can confirm Supreme Court nominees with just a simple majority, or 51 votes.
You can’t have a pick that necessarily satisfies everyone. At least with the names being floated, there’s quite a bit of support, says Gbemende Johnson, an associate professor of government at Hamilton College who is focused on judicial politics.
As Biden looks to reshape the courts like his predecessor, Democrats have praised him for naming picks to the federal judiciary with more racial, gender, academic and professional diversity. And while he’s disappointed the left of his party in some aspects, particularly on stalled legislation like his Build Back Better economic plan and voting rights, progressives have celebrated Biden for naming judges with more unconventional and diverse backgrounds.
Jackson, 51, was confirmed to the U.S. Court of Appeals for the D.C. Circuit last summer, replacing Merrick Garland after he took the position of attorney general. She delivered her first ruling earlier this month that sided with public-sector labor unions. She was previously considered for the Supreme Court in 2016, and if she’s selected this time, Jackson would also make history as the first justice with previous work as a federal public defender.While the White House wouldn’t confirm on Wednesday if Biden made a decision, some court watchers speculated about Jackson, given the unusual schedule of the D.C. Circuit. On Thursday, the appellate court released an opinion – where Jackson was in the majority – instead of traditionally issuing rulings on a Tuesday or Friday. In 2018, a similar change in the opinion schedule happened right before Brett Kavanaugh was promoted to the Supreme Court
Childs, 55, has also been on Biden’s radar for a while. He formally nominated her to the same appellate court as Jackson two weeks before Breyer’s retirement announcement. She’s been a U.S. District Court judge for over a decade, and after her time at Nexsen Pruet, Childs worked at her state’s Department of Labor and on South Carolina’s Workers’ Compensation Commission.
Her biggest defenders are also highlighting her education outside of the standard Ivy League institution that adorns the resumes of most Supreme Court hopefuls. While her two competitors attended Harvard and Yale Law Schools, Childs got her J.D. from the University of South Carolina.
In the weeks since Breyer’s stated departure, progressivesand labor organizations have mounted a public campaign to discourage Biden from choosing Childs. They want the president, who has fashioned himself as a strong supporter of unions, to reflect those sentiments in his lifetime appointment to the high court.
But Clyburn, one of Biden’s top allies, is vigorously rallying behind Childs. He played a critical role in delivering the president a victory in South Carolina’s 2020 Democratic primary after Biden struggled in earlier contests. And Graham, who’s a former chairman of the Senate Judiciary Committee, has predicted she could win over a higher number of Republicans in a confirmation vote.
Still, Jacksonhas a history of winning GOP votes in the current Senate. During last year’s confirmation to the D.C. Circuit Court of Appeals, she got support from Graham, Sen. Susan Collins of Maine and Sen. Lisa Murkowski of Alaska. That could be a boost for Jackson since those same Republicans will likely be under pressure to support her again after doing so eight months earlier.
(Jackson) was very recently confirmed and received a few Republican votes, Johnson says. It does put those Republicans on the spot if they were to suddenly oppose her.
The consideration of age is also a major factor – something former President Donald Trump prioritized with his three nominees, who are all under 60. Vacancies on the Supreme Court will likely significantly slow down since shifts on the bench are harder because people are serving for longer, says Amy Steigerwalt, a political science professor at Georgia State University.
If nominated and confirmed, Kruger would be the youngest justice at age 45. She is five years younger than Justice Amy Coney Barrett, who currently holds that distinction.
Kruger, being 45, is pretty attractive and brings that state court experience which we don’t have a lot of on the bench, says Sara Benesh, political science professor at University of Wisconsin-Milwaukee.
With all of the public and behind-the-scenes pressure, White House press secretary Jen Psaki contends that Biden won’t be swayed by public griping or lobbying campaigns or efforts to trash other candidates. At this week’s briefings, she wouldn’t confirm whether his nomination interviews concluded or if he has reached a decision.