Bye, Bye Breyer

  

“The president has stated, and reiterated, his commitment to nominating a Black woman to the Supreme Court and certainly stands by that.”                                                                                  

White House Press Secretary, Jen Psaki on January 26th.

It not completely official, but it is all but certain that U.S. Supreme Court Associate Justice, 83-year-old Stephen Breyer, one of the three remaining liberal justices on the Court, is retiring. Pressure from high-ranking Democrats for Breyer to leave has been mounting, spurred in significant part by the death of Justice Ruth Bader Ginsberg (then 89) in 2020, allowing a lame duck Donald Trump to cement a conservative majority on the Court. Thus, a close look at what I believe are the most viable candidates is worthy of consideration. After all, there have only been two African American Supreme Court Justices, both men (Thurgood Marshall and current Justice Clarence Thomas). 

So, purposely in no particular order, here is my list of viable African American women for that appointment. There are hundreds of qualified candidates, but I settled on these choices. Just my opinion. Age is critical, since these appointments are currently for life, and unless a justice is impeached, permanently disabled or retires, a sitting president normally want his or her appointment to sit on that bench for the longest time possible. 

While judicial appointments are exempt from the filibuster rule, Senate Minority Leader, Mitch McConnell (R-Ky) has pledged to oppose Biden-sponsored judicial appointments, which require Senate confirmation. If the GOP takes the Senate this year, the current vacancy may be Biden’s only appointment to the highest court in the land. Here’s my short list:

Stacy Abrams, 48, is a former member of the Georgia House of Representatives (minority leader) and “almost” governor, losing to Republican Brian Kemp by a whisker in 2018. She’s Yale law grad who practiced law in Atlanta (tax, healthcare and public finance). She is also a highly regarded civil rights activist. Would Ms Abrams be willing to give up her current run for Governor of Georgia for the opportunity, and would Joe Biden risk losing that governorship accordingly? Probably not. But she would be one hell of a justice!

Leslie Abrams Gardner, 48, Stacey Abrams’ sister, also a Yale Law grad, rose from private practice to being appointed as an assistant US Attorney for the Northern District of Georgia before being appointed as a federal District Court Judge by Barack Obama in 2014.  Gardner might be too far down the line to make the leap to the Supreme Court, but her age is a definite plus.

Kamala Harris, 58, former California attorney general, then US Senator from California and currently Vice President of the United States. A graduate of the University of California, Hastings School of Law, Harris worked her way up from a local Bay Area district attorney, rising to City Attorney for San Francisco to S.F. District Attorney. Harris would be my call, but she would probably have to renounce running for President after Biden leaves office. However, her experience is exactly what is needed on the Supreme Court. Her appointment would have the benefit of lifting her out of the tsunami of criticism that she and the President currently face and allow Biden to name a new Vice President that could give him an opportunity to rebuild his public persona, something he desperately needs. She would face stiff GOP resistance, however, and without any GOP support, she might not be able to break a deadlock and vote for herself. There is a catch: Biden has so far taken the position that she will not be his nominee. Psaki: “The president has every intention, as he said before, of running for reelection, and running for reelection with Vice President Harris on the ticket as his partner.”

Letitia James, 64, began her post Howard University Law legal career as NYC public defender, eventually becoming an assistant Attorney General in NY, then serving on the New York City Council before running for and becoming the New York State Attorney General herself. Deeply involved in the investigation of Donald Trump and his business operations in New York. Her efforts against Mr. Trump might make her a lightening rod for GOP opposition. 

Judge Johnnie B. Rawlinson, 70, is a sitting justice on the Federal Ninth Circuit Court of Appeals. A graduate of the McGeorge School of Law (University of the Pacific), she moved from private practice in Nevada to the Las Vegas Office of the District Attorney before being appointed as a federal District Court justice by Bill Clinton in 1998, with a second appointment by Mr. Clinton to the federal appellate court two years later. While Justice Rawlinson would be an excellent choice, her age might provide too few remaining years for a Biden appoint her to the Supreme Court.

Judge Ketanji Brown Jackson, 51, is a justice on the prestigious federal Court of Appeals for the District of Columbia. After graduating from Harvard Law and serving in several judicial clerkships, she moved from private practice to the US Federal Sentencing Commission as assistant special counsel. After a stint in D.C. as a federal District Court judge, she was named to the above Court of Appeals, both appointments by Barack Obama. She has ruled in controversial cases against both the Obama and Trump administrations and is highly qualified for a Supreme Court appointment. Her age also works in her favor. My guess is that Brown Jackson is the likely nominee. So, she is appropriately pictured above.

Justice Leondra Kruger, 46, is the youngest California Supreme Court justice (appointed by Governor Jerry Brown) in modern history and the fourth Black person on that bench. Her reputation is as a conservative Democrat, a trait that might overcome GOP resistance to a Biden appointment. Also graduate of Yale Law School, she moved from high-level judicial clerkships and private practice in some of the most discerning firms in the nation, before segueing into government with appointments as assistant to the US Solicitor General and later Deputy Assistant Attorney General in the Office of Legal Counsel within the US Department of Justice. A tad too conservative for my mind’s eye, but not a bad choice for a purportedly centrist president.

 Melissa Murray, 55, is the Academic on my list. Another Yale Law grad, who also enjoyed high-level judicial clerkships, Murray began her academic career at the University of California, Berkeley School of law before becoming a tenured professor at the NYU School of Law. Murray’s outspoken liberal bent – she is a leading expert in constitutional law, family law and reproductive rights and justice – might make her popular with Democrats but a difficult appointment to get by the GOP.

All impressive academics, prosecutors and/or judges. Any one of these superlative legal minds would make an honorable and excellent Supreme Court justice. It’s time for Biden to make that call… and for the Senate to confirm that choice without the expected partisan grandstanding from the right.

I’m Peter Dekom, and since a Supreme Court appointment is one of the most impactful decisions a sitting US president can make, I thought it might be a good idea to think about who should get that nod.