The countdown has begun.
On January 27, one day after Stephen Breyer announced his retirement following 28 years on the High Court, President Joe Biden affirmed plans he made during his presidential campaign to nominate a Black female Supreme Court Justice.
Brushing aside criticism from conservatives for focusing on race, Biden said he will have a nominee by the end of February. That promised deadline is next week, and anticipation is mounting during Black History Month for the historic appointment.
Three highly qualified Black women on President Biden’s shortlist include U.S. Circuit Judge Ketanji Brown Jackson, California Supreme Court Justice Leondra Kruger and U.S. District Judge J. Michelle Childs. All three are highly qualified candidates with experience, but questions remain as to which one is better suited to serve on the nation’s highest court.
Calls to nominate a Black female Supreme Court candidate have been brewing since 2010 when President Barack Obama nominated Elena Kagan to the High Court instead of a Black woman.
Kagan had never served as a judge in any court and held posts as the Dean of Harvard Law School and as the 45th U.S. Solicitor General in the Department of Justice.
Civil rights groups and Black leaders who have pushed for diversity on the Supreme Court were disappointed but were slow to openly criticize the nation’s first Black president. Now, many are hopeful, in a political climate that is more open to change on the High Court.
Recent reports say President Biden this week began interviewing the candidates, and the process remains on track for the president to announce his nominee next week. Online Black news outlet The Grio hinted that the announcement was going to take place February 21 on the Presidents’ Day holiday, but that never happened.
Supporters behind the scenes have been heavily lobbying Biden to pick their candidate since Breyer made his announcement of retirement.
After years of lobbying for a Black female Supreme Court nominee, Black civil rights leaders support all three candidates, but the real concern is whether President Biden will pick South Carolina Congressman Jim Clyburn’s candidate, J. Michelle Childs.
Childs, a federal judge in South Carolina who doesn’t have an Ivy League law degree as do most Supreme Court justices and nominees, remains a favorite among some conservative senators, including South Carolina’s Lindsey Graham.
With more judicial experience than Jackson and Brown, since 2010 Childs has served as a federal judge for the U.S. District Court of South Carolina. From 2006 to 2010, she served as judge of the South Carolina Circuit Court, Fifth Circuit.
Some supporters are pushing for California Supreme Court Justice Leondra Kruger, a graduate of Harvard and Yale Law School. But she has the least judicial experience than the other two candidates, having served on California’s highest court since 2015.
Clyburn is hopeful Biden will pick Childs, his candidate, quid pro quo for Clyburn saving Biden’s Democratic presidential campaign in 2019, when his endorsement brought thousands of South Carolina Blacks to the polls to lift Biden over opponents Bernie Sanders and Pete Buttigieg.
Since then, Clyburn has remained one of Biden’s closest and valued advisors who supported the president when he nominated former Chicago Mayor Rahm Emanuel for Ambassador to Japan.
But Clyburn’s request in the high-profile Supreme Court nomination process will be a big test for Biden, who is under pressure to pick the most qualified candidate, which may not be Clyburn’s choice.
There is concern that should Biden choose Childs he would appear to be a president catering to Clyburn rather than choosing the most qualified candidate.
Biden, 79, and Clyburn, 81, have reportedly been friends for decades. Clyburn has been said to be lobbying Biden heavily behind the scenes in recent weeks, frustrating some White House officials who reportedly complained of the campaigning.
Clyburn tried to downplay his involvement in the process in a recent article in the Washington Post. In response to Biden nominating his favored candidate, Clyburn said, “I always said it would be a plus, but it’s not a must. I don’t believe in ultimatums. I don’t want anybody giving me one, and I’m not going to give anybody else one. I may be disappointed for the rest of my life, but I’m not going to give an ultimatum.”
There were reports that Biden and his administration were making calls to Republican senators this week, seeking possible support for a smooth confirmation.
Many Republicans are wary of Biden doubling down on his pledge to nominate a Black woman to the Supreme Court and questions to remain as to whether their calls will factor in Biden’s final decision.
Political analysts say the Senate confirmation process will not be as contentious as those Brett Kavanaugh and Amy Coney Barrett faced during President Donald Trump’s administration.
There are reports, however, that Biden is concerned about getting his Supreme Court nominee through without an ugly battle, if not an embarrassing defeat.
One candidate who remains a favorite is Ketanji Brown Jackson, whom the Senate easily confirmed last summer as a judge for the U.S. District Court of Appeals of Columbia in Washington, D.C.
Prior to her confirmation, Jackson served for eight years as a federal judge for the U.S. District Court of Columbia in Washington, D.C. Like most Supreme Court justices, Jackson graduated from Ivy League schools; she obtained her law degree and bachelor’s degree from Harvard.
The Washington Post reported late Wednesday that amid the heavy lobbying Jackson appears to have the inside track for the job. Congresswoman Frederica Wilson (D-FL) leads dozens who supported Jackson, who grew up in Miami.
Retired Federal Judge U.W. Clemon has openly opposed Jackson’s nomination to the Supreme Court. He recently wrote a letter to Biden asking him not to nominate her, years after Jackson as a federal judge ruled against a nearly $23 million class-action settlement for Black employees at Lockheed Martin.
In this case, Black employees accused the powerful aerospace and defense company of running an employee performance review system that prevented Black employees from getting fair raises, bonuses, and opportunities to obtain executive positions in the company’s corporate ranks. The lawsuit said the company failed to retain qualified Black employees who were leaving because of the lack of opportunities brought on by a “flawed” performance review system.
Lawyers for both sides in 2017 hammered out a $22.8 million agreement, which went before Jackson for final approval. In her ruling, Jackson denied the settlement, saying that the plaintiffs failed to show how all impacted Black employees of Lockheed Martin were discriminated against by the company’s performance review system.
Jackson cited a Supreme Court decision that ruled that a class action employment discrimination case must show that all affected employees were discriminated in the same way.
While the ruling raises some concerns among civil rights activists, it may score points among conservative senators who are concerned about Jackson and the ability of the other candidates to objectively make legal decisions without any biases.
In his letter, Judge Clemon did not disclose that he worked as a partner for the law firm retained by the plaintiffs at Lockheed Martin. The settlement would have generated $6 million for Clemon’s firm, Mehri & Skalet, PLLC.
