If Elected, Who Would Joe Biden Pick for the Supreme Court?

RBG Memorial
Signs and flowers are left at a makeshift memorial in front of the U.S. Supreme Court for the late Justice Ruth Bader Ginsburg. Alex Wong/Getty

As the nation awaits President Donald Trump's third Supreme Court pick, the most likely prospects are publicly known because he has been releasing lists of potential nominees since before he was elected. Yet if Senate Democrats somehow secure the chance to replace Ruth Bader Ginsburg for their nominee—or if a President Joe Biden has future chances to appoint justices—his potential choices are less obvious because, unlike Trump, the former vice president has declined to say who's on his short list.

All Biden has indicated on the record so far is a desire to appoint the first Black woman to the high court. But if Democrats make good on a threat to add justices to the high court in the event that they capture the Senate and White House in November, Biden could have an unusual opportunity to break other Supreme Court barriers on race, ethnicity and identity, too.

Who would he choose? Supreme Court nominees are a peculiar genre of celebrity, unknown to most of the public until they have been nominated by a president. Then, overnight, they become household names charged with immense power to shape American society for years to come. But while Biden won't offer a pre-election list—Trump's decision to release names of potential candidates during the 2016 campaign was another of the 45th president's norm-breaking moves—a half-dozen legal eagles interviewed by Newsweek say the pool of prospects is small enough to offer educated guesses.

The Leading Contenders

Two names surface repeatedly as top options for a Black female nominee: California Supreme Court Justice Leondra Kruger, 44, and Federal District Judge Ketanji Brown Jackson, 50. Jackson was on the short list in 2016 when President Barack Obama selected Judge Merrick Garland in 2016 to replace the late Justice Antonin Scalia. Kruger served in both Presidents George W. Bush's and Obama's solicitor general office—the legal team that represents the White House—and argued 12 cases before the Supreme Court in that role.

Michigan State University law professor Frank Ravitch says both Kruger and Brown Jackson would likely have been appointed to federal appellate courts if they hadn't had their progress blocked by Senator Mitch McConnell, the Republican leader who filibustered or refused hearings for dozens of progressive nominees during the Obama years. Kruger is a Yale Law graduate and former clerk to Associate Justice John Paul Stevens; Jackson went to Harvard Law and clerked for Associate Justice Stephen Breyer. "If Republicans hold the Senate and Biden takes office, his best pick is Kruger," Ravitch says. "She's the least highly partisan pick."

Political science professor Justin Crowe of Williams College agrees. "Both are accomplished, well-liked African-American women who are of the right age, in their late 40s to mid-50s," he says. "Their profiles, in terms of checking off the boxes of experience and education, look exactly like the profiles of justices have for the last 40 years. What's different is their experiences, their backgrounds. That's part of why they're appealing as potential members of the federal bench."

Indeed, all of the current Supreme Court justices earned their law degrees at either Harvard or Yale. "It's all part of a kind of a pipeline and the Democrats and Republicans are alike in this," Crowe says. "They come out of law school, clerk for Supreme Court judges and then, from there, you work in an administration or you work in a law school or you are tapped to join the federal judiciary. From there, your conduct and opinions make you thought to be articulate and erudite and eloquent and generally in line with the politics and positions of the president that's nominating you."

Less Traditional Candidates

In addition to those women and their more traditional high-court pedigrees, Biden also could draw from academia and politics, experts say. Justice Elena Kagan, for instance, had been a solicitor general and Harvard Law dean but never a judge before Obama tapped her in 2010. In that vein, Ravitch says, New York University law professor Melissa Murray is a name "you hear a lot in academic circles." Murray, who is in her mid-40s, is a Yale Law graduate who clerked for Associate Justice Sonia Sotomayor when Sotomayor was a federal appellate judge and, perhaps a first for a SCOTUS prospect, hosts the popular podcast Strict Scrutiny, about the Supreme Court. "She's got extremely strong academic heft and she's just freaking brilliant," Ravitch says.

Among Black women politicians, the names of Georgia gubernatorial also-ran Stacy Abrams, Atlanta Mayor Keisha Lance Bottoms and New York Attorney General Letitia James are sometimes bandied about. The last Supreme Court pick with a background in elective politics, though, was Sandra Day O'Connor, a one-time Arizona state legislator, so the idea is popular in the speculation parlor game but seems remote in real life to most experts. Says Indiana Law Professor Steve Sanders, "The strong precedent is you're looking for someone who's been on a federal court of appeals or had a significant academic career."

History-Making Possibilities

Should Biden wish to make other historic picks, there are plenty of barrier-breaking prospects given that, of the 112 Supreme Court justices in U.S. history, only two have been Black, one is Hispanic, four have been women and the eight Jewish justices are the only non-Christians. "If Biden were looking to expand the diversity of the Supreme Court in other ways, such as appointing an Asian-American, a Hispanic man or a member of the LGBTQ+ community, there are a number of strong choices," says Paul Collins, law professor at University of Massachusetts at Amherst.

Supreme Court formal photo
The full Court, in its more recent iteration. The big question now, of course: Who will fill Justice Ginsburg's seat? Chip Somodevilla/Getty Images

One prospect, New York University Law professor Kenji Yoshino, 51, fits two categories —Asian and openly gay. Yoshino is a Yale Law graduate and prolific author whose writings have heavily influenced the legal arguments regarding LGBTQ rights.

Other LGBTQ possibilities include Todd Hughes, 53, a federal appellate judge and Duke Law graduate; Cornell Law graduate Allison Nathan, 48, and Yale Law graduate Paul Oetken, 54, both federal judges in the Southern District of New York; and Pamela Karlan, 61, a Stanford Law professor and former deputy assistant attorney general under Obama.

Karlan, a Yale Law graduate and clerk for Justice Harry Blackmun, is "every progressive's dream candidate," Sanders says. Yet she may be seen as both too partisan— she testified in favor of the Trump impeachment in the House—and too old. "One of Pamela's charms is she's outspoken and sharp-witted and has undoubtedly said plenty of things over the years that would get her in trouble," Sanders says. (Karlan was forced to apologize to Trump after an off-handed remark during her impeachment testimony was interpreted as an attack on his son, Barron.)

Age is a key consideration. All of the current justices were 55 or under when appointed; the longest-serving, Justice Clarence Thomas, 72, was 43 when he joined the court. "The conventional wisdom is to appoint someone younger who can remain on the court as long as possible," Sanders says.

Other oft-mentioned candidates of Asian descent include Yale Law grad Goodwin Liu, 49, a justice on the California Supreme Court; Sri Srinivasan, 53, the chief judge of the U.S. Court of Appeals for the District of Columbia who went to Stanford Law; UCLA Law graduate Jacqueline Nguyen, 55, a federal appellate judge in the 9th Circuit; and Lucy Koh, 52, a federal judge in the Northern District of California and Harvard Law graduate. Koh's husband, California Supreme Court Justice Mariano-Florentino Cuellar, 48, is the most frequently-cited prospect to be the first Hispanic man nominated by a Democrat. He went to Yale Law.

The Argument for Staying Mum

Most observers in academia praise Biden's choice not to release a list of prospects, something no president or major-party nominee had ever done before Trump. "People have made arguments that the effect of the Trump list makes it so that all of these people on the list are now auditioning for the seat and there's posturing to try to look better to the president," Crowe says. "If you find that unseemly or that it calls into question the objectivity of a judge and why he or she is doing something, then not putting people in an on-deck circle takes that away."

What's more, Ravitch is uncomfortable even with Biden's announcement that he'd pick a Black woman. In 1980, President Ronald Reagan said he'd pick the first female justice if elected, and some criticized that eventual appointee, O'Connor, as benefiting from tokenism.

"There's a lot of incredibly qualified people who deserve to be nominated because they're just remarkably qualified people," he says. "My fear is that it will allow people to undermine nominees who really are qualified to be on the Supreme Court. Kruger is a very different justice than Brown Jackson is. Telegraphing this is going to lead to people seeing them as the African-American female justice rather than seeing these as brilliant jurists. I would want him to do it, but I wish he hadn't telegraphed it."

Steve Friess is a Newsweek contributor based in Ann Arbor, Michigan. Follow him on Twitter at @SteveFriess.

Correction (9/22/20, 1:42 p.m. ET): An earlier version of this story incorrectly attributed remarks about NYU law professor Melissa Murray to Justin Crowe instead of Michigan State University law professor Frank Ravitch. In addition, Crowe is a political science professor at Williams College, not a law professor.