Biden's SCOTUS Replacement

Democrats, Honor Justice Breyer’s Legacy and Stand Behind President Biden’s Future Nominee—It’s the Supreme Court (SCOTUS), Stupid! January 30, 2022


“Elections count”. Right-wing GOP Senator/Trump lackey Lindsey Graham (R-SC) made this statement to his “hard-Red” base upon hearing on 1/26/2022 that Justice Stephen Breyer intended to retire from SCOTUS (the Supreme Court of the United States). On 1/27/2022, Breyer made his retirement announcement official (cnn.com, politics). Sen. Graham, as commentators noted, was pushing his rabid GOP followers to get out and vote in the 2022 midterms so that obstructionist Minority Leader Mitch McConnell (R-KY) could take back the Senate. McConnell has promised to effectively block any future SCOTUS nominees and all lower federal ones that Biden puts forward should he become Senate Majority Leader. McConnell would proudly repeat what he did with President Obama’s SCOTUS nominee, now Atty. General, Merrick Garland—hold no hearings on ANY judicial nominations until the GOP can again win the presidency. McConnell shamelessly railroaded Neil Gorsuch, Brett Kavanaugh, and, especially, Amy Coney Barrett through a GOP Senate while Trump sat in the White House. Hypocrite McConnell now talks about the “sacredness” of the filibuster to destroy voting rights reform. When Gorsuch’s nomination would have been stalled by this tactic, he abolished the filibuster for SCOTUS nominees. When Ruth Bader Ginsburg died in 9/2020, hypocrite McConnell didn’t delay Amy Coney Barrett’s confirmation as he did Garland’s after Scalia’s death. McConnell rushed her confirmation vote through in one month, after millions of voters had already voted against Trump. Election Day was then just around the corner. So much for McConnell’s “letting the people decide,” like he “claimed” he was doing by holding up Garland’s nomination in 2/2016, months before the 2016 election. Many GOPers always vote for presidential candidates with the “R” after their name so that they can get anti-choice, pro-top 1% business candidates on the High Court and lower federal benches. It’s a major obsession with them. Most Democrats ignored the fact that federal judges, especially SCOTUS ones, are very important. We too must adopt such a view. We must make sure to get our voters out in droves to keep the Senate in “Team Blue’s” hands and additionally always vote for Dem. presidential candidates. We must understand that it’s the Supreme Court (SCOTUS), stupid! We must show our gratitude to Biden and his fellow Democrats in the 2022 midterm and 2024 presidential election by remembering that only a “Blue Senate” and Democratic President can put progressive pro-choice justices on the bench. Sure, Biden’s replacement for Breyer will maintain the awful 6-3 conservative tilt of the High Court, our most reactionary SCOTUS since the 1930’s (Calmes, latimes.com, 1/27/22). However, SCOTUS won’t, thanks to Biden, VP Harris, and a “Blue” Senate become an even more super-horrible 7-2 reactionary bench. If Democrats come out in droves in 2022 and add more Senators to their group of 50, they will give Biden a chance to appoint future progressive jurists. With the High Court looking like it will overturn or severely gut “Roe v. Wade” quite soon, many progressives and fellow Democrats have suddenly realized what is at stake. Well, it’s about time!


Biden’s first SCOTUS appointment has currently stopped most of the press from yammering about how “dispirited” Biden’s base has become. The SCOTUS issue has rightfully taken the Manchin/Sinema feuds with Biden over social spending and voting rights off the political radarscope. Many African-Americans, the media claimed, were “disillusioned” because they felt Biden had not strongly pushed voting rights reform. Stories were appearing about black voters not being interested in heavily turning out for the 2022 midterms, because Biden had “not delivered” for them (See latimes.com). Now, with Justice Breyer’s retirement, and Biden repeating the promise he made during the campaign to name the first African-American woman of color to the High Court, Biden’s base has rallied and “come to life” again (See cnn.com, Cillizza, C., 1/26/22). Biden has promised to name his SCOTUS nominee by the end of 2/2022. In his words, “I’ve made no decision except one: The person I will nominate will be someone of extraordinary qualifications, character, experience and integrity. And that person will be the first black woman ever nominated to the United States Supreme Court. It’s long overdue (latimes.com, Stokols, 1/27/22).” Progressive Indian-American Cong. Ro Khanna (D-CA) called his first reaction to Biden’s future SCOTUS pick, “one that moves us one step closer in a long journey toward racial justice. It’s about where you want America to be over the next 50 years.” In Khanna’s view, Biden’s SCOTUS pick will be a “galvanizing” moment for voters all across the Democratic spectrum. LoTosha Brown, a Black Lives Matter co-founder, skipped Biden’s voting rights speech in Atlanta. She called it “too little and too late.” She is now ebullient. She stated that “Black women have stood on the front lines of democracy, not just for ourselves, but for others (nytimes.com, Rogers & Karni, 1/26/22).” African-American and Democratic political strategist Donna Brazile became emotional about seeing a black woman on SCOTUS. Brazile declared, “This matters because it’s another symbol—it’s public leadership. The Supreme Court has always been perceived as the domain of white males, and once you put a Black woman in there, honey, you’ve broken up everything (nytimes.com, 1/26/22).” A close advisor to Bernie Sanders (I-VT), Faiz Shakir, said, “I hope that this is a moment for all Democrats to rally around their president and move quickly to show that with power came results. Especially when a lot of the legislative agenda is stalemated, this can send a message back to voters who put them in the White House; here’s tangible results from the fact that you put us in power (Rogers & Karni, nytimes.com, 1/26/22).” So far, Joe Manchin and Kyrsten Sinema have voted for all of Pres. Biden’s diverse and progressive judicial appointments. These have included women, people of color, Muslims, and former public defenders, individuals who hold far more progressive views than they do (See nytimes.com).


And here is the group of super-stellar Black female candidates President Biden is looking at to fill Breyer’s seat. The probable front-runner to get the nod is Ketanji Brown Jackson. Jackson (51) formerly clerked for Breyer from 1999-2000. Breyer raved about her “intellect and thoughtfulness.” She is a rising star in D.C. legal circles. She currently sits on the powerhouse U.S. Court of Appeals for the D.C. Circuit, which handles general federal cases as well as many issues involving regulatory agencies. She took Merrick Garland’s seat on that circuit when he went to head the Justice Department. The Senate recently confirmed her to the D.C. Circuit, so she has already been thoroughly vetted for a sensitive judicial position. The D.C. Circuit Ct. of Appeals is known as a springboard that has propelled several judges to SCOTUS from its ranks, including Chief Justice (CJ) John Roberts, Clarence Thomas, and Brett Kavanaugh. Judge Jackson graduated from Harvard Law and was a Public Defender in D.C. She was in private practice from 2007-2010 with Morrison & Foerster where she handled criminal and civil appellate litigation and cases before SCOTUS. President Obama nominated her to the D.C. U.S. District Ct. where she served for eight years. She is known as a gifted appellate writer, not an easy task. On the District Ct., she sentenced the “Pizzagate” defendant, Edgar Madison Welch, to four years in prison and three years of probation. Welch was ordered to pay $5, 744 in restitution for damaging the D.C. Comet Ping Pong pizzeria in 12/2016. He had traveled from N. Carolina and shot up this restaurant because he had heard that children had been held there in a child-trafficking abuse ring that Hillary Clinton led, sick QAnon nonsense (Wash. Post, 3/29/21, ballotpedia.org., nytimes.com, latimes.com, Robinson, Stohr, & Alder, 1/27/22). In 2019, Judge Jackson also ruled that Trump’s White House Counsel Donald McGahn had to testify at a House impeachment hearing. In that case, she wrote that “Presidents are not kings and that the President does not have the power to excuse his aide from taking action that the law requires (Wash. Post, 3/29/21, latimes.com, Robinson, et al).” She has a pro-labor record and is strong on immigration rights. She also served on the U.S. Sentencing Commission (latimes.com, Wash. Post, 3/29/21). Justice Jackson’s nomination will probably get a bi-partisan boost from a prominent GOPer, former House Speaker Paul Ryan. Although she and Ryan strongly disagree on political matters, Ryan is related by marriage to Jackson’s husband Dr. Patrick Jackson. Dr. Jackson is the twin brother of Ryan’s brother-in-law (abcnews.go.com, Phelps, 2/06/16). Judge Jackson and Ryan get along well.


Another strong candidate for the Breyer seat is Leondra Kruger (45). She would be the youngest of Biden’s picks, younger than Trump appointee Amy Coney Barrett (50). Kruger has been on the CA Supreme Ct. since 2015. She clerked for the late SCOTUS Justice John Paul Stevens. She served as acting Solicitor General in the Obama administration. In that post, she argued 12 cases before SCOTUS where she represented the U.S. Government. She worked in the high-powered Office of Legal Counsel and won the Atty. General’s award for exceptional service twice, in 2013 and 2014. That award is given for the Justice Dept.’s highest employee performance. On the CA Supreme Ct., she wrote a precedent-reversing decision that required a warrant for vehicular searches. She upheld a CA law that requires law enforcement to collect DNA samples and fingerprints from all persons arrested for or convicted of felony offenses. She wrote an opinion that let CNN and other media organizations use a state free speech law to block lawsuits alleging workplace bias retaliation. Some of her writings might attract GOPers while disappointing progressives. Still, she is well liked and has the reputation of a careful incremental jurist (latimes.com, Robinson et al, 1/27/22, cnn.com, deVogue & Sneed, 1/26/22).

Cong. Jim Clyburn (D-SC), the African- American representative whose endorsement was crucial to Biden’s winning the S. Carolina 2020 primary and the ultimate presidential nomination, is backing Michelle Childs (55). In 12/2021, Biden nominated her to the D.C. Circuit Ct. of Appeals. Her nomination is still pending. Childs currently sits on the U.S Dist. Ct. in S. Carolina. Obama nominated her to that position in 2010. In 2014, she ruled in favor of a lesbian couple who sought to have SC recognize their out-of-state marriage. A graduate of the University of South Carolina Law School, she does not have the Ivy League background that eight of the nine SCOTUS Justices have. Some Democrats feel that her selection would lessen the claim that “Team Blue” is too “elitist.” Childs spent a decade in private practice. She also was a SC commissioner on its workers’ compensation board and an official in the SC labor department (latimes.com, Robinson et al, cnn.com, deVogue & Sneed).


Another possible SCOTUS pick is Sherrilyn Ifill (59). She is stepping down from her role as President and Director of the NAACP Legal Defense and Educational Fund, a position that the first Black SCOTUS Justice Thurgood Marshall once held. Ifill has been at the center of policy debates involving voting rights, police brutality, and job discrimination. Her age, however, will probably work against her, since Biden will want someone to spend decades promoting liberal SCOTUS policies (cnn.com, deVogue & Sneed, latimes.com, Robinson et al).

Leslie Abrams Gardner (47) has also been mentioned as a possible Breyer replacement. She is the sister of voting rights activist Stacey Abrams who is running for Gov. of GA for a second time. Abrams Gardner was nominated by Obama to sit on the District Ct. in GA in 2014 and won a 100-0 Senate confirmation vote. She graduated from Yale Law and represented corporations including Google and the Bank of America. She has personal experience with criminal law. Her husband had wrongfully spent 26 years in prison for rape and robbery until he was exonerated. Her brother had been imprisoned and experienced mental health and substance abuse problems. With this background, including her being the sibling of Stacey Abrams, many GOPers would, however, probably resist her confirmation (latimes.com, Robinson et al). Other picks for Breyer’s seat might include MN District Judge Wilhelmina “Mimi” Wright, who would please Sen. Amy Klobuchar (D-MN) who sits on the Judiciary Committee. Sen. Majority Leader Chuck Schumer (D-NY) recommended Judge Eunice Lee to sit on the Second Circuit Federal Ct. of Appeals, and would be interested in her elevation to SCOTUS. Judiciary Chair Sen. Dick Durbin (D-IL) pushed for former Chicago public defender Candace Jackson-Akiwumi to get her appointment on the Seventh Circuit. He would be thrilled if Biden nominated her (See cnn.com, deVogue & Sneed, 1/26/22). Biden, therefore, has an “embarrassment of riches” to choose from.


Whoever replaces Justice Breyer, will have “big shoes” to fill. San Francisco, California native Stephen Breyer (83) received an undergraduate degree from Stanford University in 1959 and graduated with honors from Oxford, England’s Magdelen College in 1961 as a Marshall Scholar. At Harvard Law, he was on the Law Review and received his degree in 1964. He clerked for Supreme Court Justice Arthur Goldberg. Breyer was assistant special prosecutor on the Watergate Special Prosecution Force and chief counsel of the Senate Judiciary Committee. In 1980, Democratic President Jimmy Carter nominated Breyer, a protégé of the late Dem. Sen. Ted Kennedy (D-MA), to sit on the U.S. 1st Circuit Court of Appeals. Breyer worked well with both sides of the political aisle in the Senate. Even though GOPer Reagan had already defeated Carter, Breyer was, therefore, successfully confirmed to that circuit. He served there from 1980-1994. In his last four years, on the First Circuit, 1990-1994, Breyer was its chief judge. Democratic President Bill Clinton appointed Biden to SCOTUS to replace retiring Justice Harry Blackmun, the author of the pro-choice “Roe v. Wade” opinion. After being confirmed by an 87-9 U.S. Senate vote, Breyer served on the SCOTUS bench for nearly 28 years (See ballotpedia.org/Stephen _Breyer). Breyer also taught law at Harvard (latimes.com, Savage, D., 1/26/22).


Breyer was the second-most liberal SCOTUS Justice following the 2020-2021 term (ballotpedia.org). He had the highest agreement rate with liberal Justices Sonia Sotomayor and Elena Kagan, appointees of Democratic President Barack Obama. He disagreed the most with hard-core conservative Samuel Alito, a “W” Bush appointee (ballotpedia.org). Breyer supported abortion rights, gay rights, and dissented when the conservative majority struck down limits on campaign spending and severely gutted the Voting Rights Act (latimes.com, Savage, D., 1/26/22). Although he never achieved the public prominence of many of the other Justices, like Sandra Day O’Connor, Anthony Kennedy, Sonia Sotomayor, and Ruth Bader Ginsburg, he had a very strong judicial philosophy. Unlike conservatives, Breyer believed in government as a force for good and helping to make government work effectively. In his opinions, as well as several books he authored, (many of which I read), Breyer focused more on the practical impact of a decision rather than how it fit into an ideological approach to the law. He disagreed with Scalia’s and Gorsuch’s textualism and rigid “original intent of the Constitution’s framers” as the “be all and end all” of legal reasoning. He was the Justice most likely to uphold laws passed by Congress and federal agencies. He worked effectively with former moderate conservative Justice O’Connor who adopted a pragmatic legal approach and was very fond of her. Breyer tried to work for compromise with his fellow Justices, although not always successfully. He agreed in the “Bush v. Gore” case that ballots should have been recounted under a “uniform standard.” However, he dissented from SCOTUS’ 5-4 decision stopping the FL recount and rightly called it a “self-inflicted wound” to take this case that made “W” Bush the presidential winner in 2000 (Savage, latimes.com). Unlike Scalia, Breyer, who had worked with Congress, argued that the “intent of the legislators” who wrote the laws was a major factor in deciding cases. Scalia often belittled Congress’ attitudes toward the legislation it passed. Scalia’s views, IMHO, greatly diminished the two chambers elected by voters from all the regions of our nation to directly represent them. Despite Breyer’s stellar record, I have no doubt that the future SCOTUS Justice Biden picks will continue his distinguished record on that bench and will proudly uphold Breyer’s legacy.


Democrats rightfully plan to push Biden’s nominee through the Senate as quickly as possible. They are facing a tough 11/2022 midterm in which GOPers could retake the evenly divided 50-50 Senate. As I previously mentioned, Biden’s attempt to appoint any future SCOTUS or lower federal court nominees, will be “dead in the water,” blocked by obstructionist “king” Mitch McConnell. Biden’s chief-of-staff and former Supreme Ct. clerk to Byron White, Ron Klain, agrees with his boss that putting a progressive stamp on the judiciary ASAP is a very high priority. Unlike Obama, they have rapidly filled lower court vacancies with progressive and diverse jurists. The Breyer replacement will be the ninth SCOTUS nomination in which Klain has been closely involved (See cnn.com, Liptak, Mattingly, Zeleny, & Collins, 1/26/22). And now, Democratic voters, we must back Biden’s replacement for Breyer against GOPers already “upset” that a black woman will replace Breyer (See Fox News broadcasts). And most important of all, I repeat, our base must stop bickering, get energized, and come out in droves plus in 11/2022 to keep the Senate and House in “Team Blue’s” hands. Our judicial system depends on it, Biden’s progressive agenda depends on it, and so does our democracy.