The retirement of Supreme Court Justice Stephen Breyer has given President Biden the opportunity to fulfill his promise of appointing a Black woman to the nation’s highest court.
The retirement of Breyer, 83, was reported Wednesday afternoon and followed months of pressure from Democrats for him to step down. Breyer is a leader of the court’s liberal wing, which is now outnumbered 6 to 3 by conservatives.
Biden promised during the 2020 campaign that he’d appoint a Black woman to fill any vacancies, and Ketanji Brown Jackson and Leondra Kruger are seen as two of the likeliest contenders.
Biden nominated Jackson, 51, to the U.S. Court of Appeals for the District of Columbia Circuit last summer. Jackson had served as a district judge in the U.S. District Court for the District of Columbia since 2013, previously working as a public defender, the vice chair of the U.S. Sentencing Commission and a clerk for Breyer.
Jackson was confirmed to her current post by the Senate in a 53-44 vote, with Republican Sens. Susan Collins of Maine, Lisa Murkowski of Alaska and Lindsey Graham of South Carolina voting in her favor. Centrist Democratic Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, who’ve been at loggerheads with the White House on a number of key issues, were also yes votes on Jackson last year.
During her confirmation hearing for the U.S. Court of Appeals, Sen. John Cornyn, R-Texas, asked Jackson how race would affect her job.
“I don’t think that race plays a role in the kind of judge that I have been and would be. I’m doing a certain thing when I get my cases,” Jackson replied. “I’m looking at the arguments, the facts and the law. I’m methodically and intentionally setting aside personal views, any other inappropriate considerations, and I would think that race would be the kind of thing that would be inappropriate to inject into my evaluation of a case.”
One of Jackson’s most prominent rulings was a 2019 decision in which she ordered former Trump White House counsel Don McGahn to testify in the impeachment inquiry against then-President Donald Trump.
Kruger, 45, is an associate justice of the Supreme Court of California. Having previously served in the Office of the Solicitor General during the George W. Bush and Barack Obama presidencies, she argued 12 cases in the U.S. Supreme Court. She previously clerked for former Supreme Court Justice John Paul Stevens. Then-California Gov. Jerry Brown, a Democrat, appointed Kruger to the state Supreme Court in 2014 when she was 38 years old.
“Leondra Kruger is one of the handful of the most brilliant attorneys with whom I’ve ever worked,” Neal Katyal, who was acting solicitor general during Obama’s first term, told the L.A. Times in 2020. “I asked her to be my principal deputy solicitor general because I knew the advice she’d give me would be meticulous and deeply thought out, and most of all, honest: I cannot imagine a better justice.”
Liberals had been urging Breyer to retire since Biden won the presidency, concerned that if Republicans were to retake the Senate in the 2022 midterms and Breyer were to die, GOP Senate leader Mitch McConnell would not allow a replacement to reach the bench.
Obama had reportedly nudged Supreme Court Justice Ruth Bader Ginsburg to retire when a Democratic Senate could have confirmed a replacement, but she rejected the entreaties, dying in the final months of the Trump presidency. The process for her replacement was quick: Ginsburg died on Sept. 18, 2020, Trump nominated Amy Coney Barrett as her replacement on Sept. 26 and Barrett was confirmed on Oct. 26.
In a statement, Senate Majority Leader Chuck Schumer said Breyer’s replacement would be confirmed with “deliberate speed.”
Biden’s promise to appoint a Black woman was key to his winning the Democratic nomination for president. Rep. Jim Clyburn, the South Carolina Democratic power whose endorsement helped Biden turn his fortunes in the 2020 primary, said that the pledge was central to his decision.
"The president has stated and reiterated his commitment to nominating a Black woman to the Supreme Court, and certainly stands by that," press secretary Jen Psaki said at Wednesday afternoon's White House briefing.