US President Joe Biden has a daunting task in front of him – to nominate a candidate who will become the 116th justice of the country’s Supreme Court.
The question of who Biden will pick follows the retirement announcement by the liberal justice Stephen Breyer, who was appointed to the court in 1994 when Bill Clinton was president. At the time, it was Biden himself who presided over Breyer’s confirmation hearings.
What’s at stake for the Democrats?
Breyer has given favourable rulings when it comes to issues such as the rights of LGBTQ+ individuals and reproductive rights and has been referred to as a “champion of liberty and equality”.
But at 83 years, he is the oldest justice on the bench, which liberals see as an opportunity. They have been urging Breyer to retire so that his successor can be chosen while the Democrats control the White House and the Senate (once a president nominates a justice, the Senate needs to confirm it).
During his presidential campaign, Biden promised that his nominee will be the court’s first Black woman, thereby potentially becoming one of the nine justices, which currently has double the number of conservative justices (6) than liberal ones.
The split is the same between the number of men (6) and women (3) on the bench. There is also one Black male, justice Clarence Thomas, who was appointed by Republican president George Bush. After Breyer retires, Thomas will become the oldest on the bench at 73 years.
This nomination is crucial, like any other such appointment because Supreme Court justices are appointed for life, a term limit that has lasting consequences on the liberal-conservative divide, which affects the life of citizens by bearing down on issues such as abortion, immigration, gun control and even vaccine mandates.
Under Donald Trump, the court was considered to be one of the most conservative-leaning courts in US history. During his tenure, Trump appointed three justices to the Supreme Court. His last appointment became possible after the death of liberal stalwart Ruth Bader Ginsburg in 2020, after which Trump nominated conservative Amy Coney Barrett to the court.
Barrett’s nomination was protested by the Democrats, who called out Trump for pushing to nominate the ninth justice during an election year. In 2016, which was also an election year, Republicans successfully blocked then president Barack Obama’s nominee, Merrick Garland after justice Antonin Scalia passed away.
Worried by the ideological split of the court, the Democrats were also considering expanding the court’s bench in 2020 (also referred to as court-packing) to ensure that the court does not remain strongly to the right for the next 30-40 years or so.
Replacing Breyer now will ensure that the Democrats are able to at least retain the current 6-3, conservative-liberal split. A nominee will be chosen by Biden, hopefully before February ends.
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Who are the possible nominees?
Last month, Biden said that his nomination will be of a “historic candidate”, the first Black woman ever to be nominated to the Supreme Court.
Reports suggest that there are at least three contenders for the position. One of them is Ketanji Brown Jackson, who was Breyer’s law clerk previously. Jackson, 51, who is a product of Harvard Law School, was commissioned as a Circuit Judge in June 2021.
Considered to be the frontrunner, Jackson’s Wikipedia page was edited by her former clerk to portray her in a more favourable light to her liberal supporters, while pages of her competitors Leondra Kruger and J. Michelle Childs’s were edited to be less favourable to liberals, Politico reported.
Kruger, who is 45 years old, had a private practice before working for the government and specialised in appellate and Supreme Court litigation. During her tenure in the Office of the Solicitor General under Barack Obama, Kruger argued 12 cases in the Supreme Court on behalf of the federal government. Since 2015, she has been a justice on the California state supreme court.
The third contender is Childs, a federal trial judge in South Carolina. One thing that is being pointed out, which differentiates Childs from the other two contenders and also eight of the nine justices, is that she did not attend an Ivy league institution. Barrett, who graduated from Rhodes College and Notre Dame Law School is the other exception.
Her public university background is being seen as a positive by some, who see this as a feature that will add diversity to the educational backgrounds of the justices. Significantly, Childs remains the only nominee whose consideration has been confirmed by the White House, according to The Washington Post, which first reported the confirmation.