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Fast Facts: Biden's Short List to Replace Supreme Court Justice Stephen Breyer

By Laura Temme, Esq. on February 05, 2022 2:36 AM

After more than 27 years of service on the nation's highest court, Supreme Court Justice Stephen Breyer announced his retirement last week. He plans to step down this summer, after the current session.

On the presidential campaign trail, President Biden promised he would nominate a Black woman to the U.S. Supreme Court if given the opportunity. And in his speech at a White House event on Justice Breyer's retirement, Biden reiterated his commitment to that goal.

"I've made no decisions except one," the president remarked. "The person I will nominate will be someone with extraordinary qualifications, character, experience, and integrity. And that person will be the first Black woman ever nominated to the United States Supreme Court."

While Biden says he's made no final decision on his nomination, three front runners have emerged:

South Carolina Federal District Judge J. Michelle Childs

Childs, now 55, obtained her law degree from the University of South Carolina in 1991, as well as her a master's degree in personnel and employment relations from the University's business school. She later earned an LLM (a one-year specialization in an area of legal studies) in Judicial Studies from Duke Law.

Childs spent her early career in private practice in Columbia, South Carolina, focusing on labor and employment law. She represented a variety of clients, including employers facing allegations of discrimination and employees attempting to unionize.

In 2009, President Obama nominated Childs to a federal judgeship for South Carolina. And just last month, President Biden nominated her to the D.C. Circuit Court of Appeals. However, Congress has postponed her confirmation hearing in the wake of Breyer's retirement announcement.

Several members of Congress have identified Childs as a favorite for Justice Breyer's seat, including South Carolina congressmen Representative Jim Clyburn (Dem.) and Senator Lindsey Graham (Rep.). On CBS's Face the Nation, Graham said of Childs:

"She has wide support in our state. She is considered to be a fair-minded, highly gifted jurist. She's one of the most decent people I've ever met."

D.C. Circuit Court of Appeals Judge Ketanji Brown Jackson

Jackson, now 51, graduated magna cum laude from Harvard University and cum laude from Harvard Law. She clerked for a federal district court judge and then a federal appellate court judge before eventually clerking for Justice Stephen Breyer himself, from 1999-2000. After some years in private practice, in 2010, following a nomination from President Barack Obama, Congress unanimously confirmed her to serve on the U.S. Sentencing Commission.

Two years later, President Obama nominated Jackson to serve as a federal judge on the U.S. District Court for the District of Columbia. As a federal district court judge, Jackson made several notable rulings. In a 2015 decision, she held that the D.C. Department of Corrections had violated an inmate's rights under the Americans with Disabilities Act by failing to assess his need for hearing accommodations upon his arrival at the jail. Read this decision and thousands more with a free trial of Westlaw Edge.

In 2018, Judge Jackson authored a scathing 118-page opinion rejecting former President Donald Trump's claims that his aides could not be required to testify before Congress.

"Presidents are not kings," she wrote. "This means they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control."

In 2021, President Biden nominated Jackson to the D.C. Circuit Court to fill the seat vacated by Judge Merrick Garland, who had stepped down to become Attorney General. Justice Jackson has been confirmed onto the Court of Appeals since last summer.

California Supreme Court Justice Leondra Kruger

Kruger, now 45, graduated with honors from Harvard University and subsequently attended Yale Law School. After obtaining her JD in 2001, Kruger spent a year in private practice before clerking for D.C. Circuit Court of Appeals Judge David Tatel. Then she moved to the Supreme Court in a clerkship for Justice John Paul Stevens during the court's 2003-2004 term.

After a few years in private practice, Kruger returned to government work in the U.S. Department of Justice. From 2007 to 2013, she served in the Department as an Assistant to the Solicitor General and as Acting Deputy Solicitor General.

In 2011, Justice Kruger argued before the Supreme Court on behalf of the Obama administration in Hosana-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission. In this high-profile religious liberty and employment discrimination dispute, Kruger argued that the "ministerial exception" (the First Amendment doctrine that gives religious institutions sole discretion over who they employ as "ministers") should not bar a teacher from suing for discrimination based on a disability.

In oral arguments, Kruger and other lawyers representing the government argued against the very existence of the doctrine - taking the surprisingly aggressive position that religious organizations should have the same rights of association as other groups. The court disagreed, holding in a 7-2 decision that the ministerial exception protects the right of religious institutions to decide "matters of faith and doctrine" without government interference.

Following a brief stint at the Department of Justice, Kruger was nominated to the California Supreme Court by Governor Jerry Brown in 2014. If confirmed to the United States Supreme Court, Kruger would be the youngest justice since Clarence Thomas, who joined the court at 43.

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