Sep 25, 2020 - Politics & Policy

Who Biden might put on the Supreme Court

Illustration of a lone supreme court chair under a spotlight.

Illustration: Aïda Amer/Axios

In the wake of Supreme Court Justice Ruth Bader Ginsburg's death, Democrats are compiling lists of Black women they want Joe Biden to consider for the bench if he's elected — with an eye toward people from outside the traditional legal establishment.

Why it matters: Supreme Court appointments are one of the most consequential parts of any president's legacy, and a President Biden would need to find picks who could try to wrangle liberal victories from a solid conservative majority.

Where it stands: Biden has stayed silent on who he might appoint to the Supreme Court, and has said he won't release a list of potential nominees, the way President Trump did in 2016.

  • But he has pledged to select a Black woman if elected and presented that opportunity.

What we're hearing: Ketanji Brown Jackson, a district court judge in D.C., is an obvious contender. She was on President Obama's shortlist to replace the late Justice Antonin Scalia, and has all the standard qualifications for modern nominees — Harvard Law, prominent clerkships and a spot on the federal bench.

Yes, but: Many progressive advocates told Axios they want Biden to think differently about a potential nominee — to not only add sex and racial diversity, but to also inject some different life experience and professional background into the court.

Names they're discussing:

  • Leondra Kurger, a justice on the California Supreme Court
  • Leslie Abrams Gardner, a federal district judge in Georgia (and Stacey Abrams' sister)
  • Sherrilyn Ifill, president of the NAACP Legal Defense Fund
  • Melissa Murray, a professor at NYU Law who clerked for Justice Sonia Sotomayor and is would likely follow Sotomayor's model of judging
  • Keeanga-Yamahtta Taylor, an academic teaching at Princeton and an author and activist on racial justice
  • Barbara Ransby, who teaches history at the University of Illinois-Chicago and is a longtime political and civil rights activist

Between the lines: All of the current justices graduated from Harvard or Yale law school. All but one were promoted to the Supreme Court from federal appeals courts. None of them have advocacy backgrounds, or have ever run for office, or served as public defenders, or on a state Supreme Court.

"The big thing to me that is missing from the Supreme Court is the understanding that the working class of America is getting screwed," said Faiz Shakir, Bernie Sanders' former campaign manager and current adviser.

  • "On a lot of these core economic justice issues, the court would be behooved by individuals who not only understand that pain and suffering, but come from that pain and suffering," Shakir added.

And Biden would have plenty of opportunities to add more diversity to the court if progressives get their other big wish — an expanded Supreme Court. Biden hasn't endorsed that idea, but it's quickly gaining traction on the left.

  • “There’s going to be incredible pressure to add justices,” said Jeff Hauer, the director of the Revolving Door Project. “The Democratic base is going to demand retaliation on the theory that bullies are not deterred by acquiescence.”

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