The reported retirement of Supreme Court Justice Stephen Breyer has provided President Joe Biden with his first opportunity to pick a member of the nation’s highest court. During his campaign, Biden promised to nominate a Black woman, and common sense and political history provide additional guidance about the type of people presidents usually select.
But the media industrial complex needs fodder for opinion columns, regular people need stuff to talk about, and few Americans know enough about likely nominees (including D.C. Court of Appeals Judge Ketanji Brown-Jackson or California Supreme Court Justice Leondra Kruger) to satiate our collective desire for takes. Expect a frenzy of speculation to rival a vice presidential pick.
When your neighbor or some Democratic pundit trying to go viral floats one of these names, you can feel safe ignoring it: Here is a list of people Joe Biden almost certainly won’t name to the Supreme Court, and one person that he probably won’t.
Former President Barack Obama or former first lady Michelle Obama
Both Obamas are lawyers — not technically a requirement to serve on the Supreme Court, but a realistic one in the modern era — and Barack Obama even served as a professor of constitutional law. Unfortunately, he is not a Black woman.
Michelle Obama, of course, is a Black woman. But she’s also a Black woman who, by all accounts, has tolerated rather than actively encouraged her husband’s runs for electoral office and has tried to keep her political activity to a minimum despite her popularity.
And with Supreme Court justices serving lifetime appointments, presidents of both parties have been skewing younger and younger with the nominations to the court. Michelle Obama is 58 — seven years older than Brown-Jackson and 13 years older than Kruger. Not since the nomination of Ruth Bader Ginsburg in 1993 has a president picked a justice so old.
Former Democratic presidential nominee Hillary Clinton
Clinton is not a Black woman. She’s also 74 years old, and remains one of the nation’s least popular political figures. Nominating Clinton would set GOP grassroots fundraising — already strong ahead of the 2022 midterms — absolutely aflame, and would likely motivate Republicans far more than Democrats.
Attorney General Merrick Garland
First of all, Garland is not a Black woman. And while his role as the stately sacrificial lamb to GOP partisanship in 2016 has made him a popular float for any pundit looking for a symbolic move to unite the country, Obama nominated Garland, a relative moderate, in 2016 in a bid to garner support from a GOP-controlled Senate.
This time around, Biden will not necessarily need to win over GOP senators. While Democratic Sens. Kyrsten Sinema (Ariz.) and Joe Manchin (W.Va.) have made their willingness to buck the party line more than clear over the first year of Biden’s presidency, both have also voted for every single one of Biden’s judicial nominees so far. (Manchin, in particular, has given deference to presidents of both parties on judicial nominations.)
At least one likely nominee, Jackson, has already won over some GOP senators, picking up votes from Sens. Susan Collins (Maine), Lisa Murkowski (Alaska) and Lindsey Graham (S.C.) when she was confirmed to the U.S. Court of Appeals for the D.C. Circuit in 2021.
In addition, Garland is already doing a critical job and overseeing the government’s prosecutions of Jan. 6 rioters, a process Biden will be reluctant to disrupt.
Sens. Collins, Pat Toomey (R-Pa.) or John Kennedy (R-La.)
We are now entering the portion of the program for pundits whose columns double as spec scripts for a reboot of “The West Wing.” Collins, Toomey and Kennedy are all Republican senators who represent states where a Democratic governor would have the power to select their replacement. In theory, moving one of them to the court could give Democrats the final vote they need to pass huge chunks of Biden’s social and economic agenda.
Let’s state the obvious once again: None of these three people are Black women. And of the three, only Kennedy is a lawyer.
Moreover, handing a Supreme Court seat to a Republican for a decade or more would not be worth the tradeoff to pass Biden’s Build Back Better plan. (Democrats would still not be able to pass voting rights legislation, since both Manchin and Sinema oppose the legislation.)
The Kentucky state legislature last year passed a law stripping the state’s Democratic governor of his ability to appoint replacement senators. This deprives us of what would have been the nuclear take: calling on Biden to appoint Senate Minority Leader Mitch McConnell to the Supreme Court.
Sen. Mitt Romney (R-Utah) or Rep. Liz Cheney (R-Wyo.)
Romney and Cheney are, at this point, the leaders of the “Never Trump” faction of Republican politics. This will, once again, make them popular suggestions for pundits who think the goal of a Supreme Court nomination should be to “unite the country.” (This take involves ignoring Cheney and Romney’s widespread unpopularity among rank-and-file Republicans.)
Also, neither is a Black woman.
The Rock, Joe Rogan, Oprah Winfrey, Matthew McConaughey or any other celebrity
Celebrities make some sense as political candidates: Since they’re already famous, they have an easy time hopping over the name identification barriers that snuff out many campaigns before they begin. They can usually quickly overcome one of the biggest barriers to winning office. But winning confirmation to the Supreme Court isn’t about name identification — polling indicates only three of the justices are known by more than half of Americans.
Brandeis University professor Anita Hill
There would be poetic vengeance to Biden nominating Hill, the law professor who accused Clarence Thomas of sexual harassment during his confirmation hearings three decades ago. The Senate voted to confirm the conservative Thomas anyway, and it is now widely accepted in Democratic circles that the Senate — and Biden in particular — mistreated Hill and mishandled her allegations.
As a law professor and a Black woman, Hill meets the qualifications more than most of the other candidates floated here. But she’s 65 years old. And while Biden called her to apologize for her treatment before launching his presidential bid, relations between the two remain frosty at best.
Georgia gubernatorial candidate Stacey Abrams
Abrams, as one of the most prominent Black women in Democratic politics, is also likely to be a subject of speculation. She is young enough, at 48 years old. While she is a lawyer, she has checked off different career boxes than most recent Supreme Court nominees, who have tended to work as law professors, lawyers in the Justice Department or White House, and as judges.
More importantly, however, Abrams has made it clear over the years that her goal is to become governor of Georgia. After narrowly losing in 2018, she passed on runs for Senate and potential jobs in Biden’s cabinet to prepare for another run in 2022.
Vice President Kamala Harris
This pick will be almost impossible for Aaron Sorkin-imitating pundits to ignore. Not only do they get to suggest a seemingly unlikely Supreme Court justice, they also get to suggest someone equally implausible to replace her as vice president.
Even more tempting for an idea-starved op-ed writer, Harris’ background as a prosecutor and California attorney general would make her a plausible candidate for a Supreme Court seat even if she had never won election to the Senate or the vice presidency.
Adding to the speculation, there exists a coterie of Democratic operatives and strategists who are convinced that Biden needs to find a way to remove Harris as his successor, believing she could not win the presidency herself. (This is despite the fact that Harris’ approval ratings have closely tracked with Biden’s not-great approval ratings throughout his time in office.)
However, Harris — aged 57 — would be the oldest nominee to the high court since Ginsburg. Furthermore, nominating her would set up a series of high-stakes, politically risky maneuvers. Depending on the timing of her resignation, Democrats would be without her tie-breaking vote in the Senate for a crucial length of time. Biden would then need to find a replacement vice president acceptable to the entire party, then navigate that person through a Congress-wide confirmation vote.
Still, if Harris actually wanted the job, she might be able to get it. But all signs suggest she doesn’t: The White House signaled on Wednesday afternoon that the Supreme Court nominee would be someone currently serving as a judge.