Employment & Labor Insider

Justice Stephen Breyer has announced his retirement from the U.S. Supreme Court effective sometime this summer, presumably to guarantee that President Biden rather than a President DeSantis will be able to nominate his successor.*

*Yeah, yeah, I understand that the President is also trying to beat the 2022 midterm elections.

The announcement was made formally yesterday, after being informally announced (or leaked before Justice Breyer was ready?) on Wednesday. The President said yesterday that he has not made a decision about the nominee, except that he or she will be "someone of extraordinary qualifications, character, experience and integrity.

"That person will be the first Black woman ever nominated to the United States Supreme Court."

Oh, Editor -- please change that "he or she" part to just "she." (Employers, don't try this at home. Title VII doesn't apply to Presidential nominations.)

Justice Breyer was very gracious and pretty brief. Here are his comments:

OK, enough about yesterday. On to the future.

The contenders: Let's speculate!

My pick: Michelle Childs. Among the leading contenders for Justice Breyer's successor, I've already picked my favorite: Judge Michelle Childs of South Carolina, who was recently nominated by President Biden to the U.S. Court of Appeals for the District of Columbia Circuit. (She has yet to be confirmed.) As a federal judge from South Carolina, Judge Childs has appeared at a number of our North Carolina/South Carolina Bar Association meetings, and she's made a good impression on me.

I'm sorry I don't have a picture of Judge Childs. The only one I could find that I could legally use was taken in 2010 and did not do her justice. (See what I did there?)

Judge Childs has the advantage of an endorsement from House Majority Whip James Clyburn (D-SC), who was a huge help to then-candidate Joe Biden in getting the Democratic nomination for President.

According to news reports, though, Judge Childs may not yet have enough experience to make it to the Supreme Court. The top two prospects are reportedly Judge Ketanji Brown Jackson of the D.C. Circuit (successor to now-Attorney General Merrick Garland) and Justice Leondra Kruger of the California Supreme Court.

Judge Ketanji Brown Jackson. Judge Jackson clerked for Justice Breyer back in the day, so I'm sure that is a point in her favor. She's also Harvard undergrad (magna cum laude) and Harvard Law (cum laude). She's been on the D.C. Circuit only since June 2021 (appointed by President Biden), but she was a federal district court judge for about nine years before that (appointed by President Obama). She has also been in private practice and a federal public defender, and has served on the U.S. Sentencing Commission. 

Justice Leondra Kruger. Leondra Kruger has been an Associate Justice on the California Supreme Court since 2015, having been nominated by then-Gov. Jerry Brown (D). She is Harvard undergrad (magna cum laude and Phi Beta Kappa), Yale Law (editor in chief of the Yale Law Journal) and clerked for Supreme Court Justice John Paul Stevens. In addition to being in private practice, she served in the U.S. Solicitor General's office toward the end of the George W. Bush Administration and into the Obama Administration, and also as Deputy Assistant Attorney General for the U.S. Department of Justice Office of Legal Counsel.

According to Wikipedia (so it's gotta be true), she is the first justice on the California Supreme Court to have a baby while on the bench. Not literally, I don't think -- I assume she made it to the hospital. But that's still pretty cool.

Quite a few other names have been mentioned, but this post is getting too long already, so I'll limit myself to these top three prospects, plus the following three long shots, just for fun.

If you're feeling lucky . . .

For those of you who like living on the edge, here are a few other possibilities:

Michelle Obama. I can't imagine that the former First Lady would even want to be on the Supreme Court, assuming she were asked. First, I understand that she hated Washington and politics. (That's one of the things I like about her.) Second, I get the impression that she and the former President are really, really enjoying their retirement. Why give up the mansions in Martha's Vineyard and Oahu to hear oral argument in United States v. Ninety-Five Barrels (More or Less) Alleged Apple Cider Vinegar?

Vice President Kamala Harris. I spent some serious time on Wednesday afternoon thinking that Vice President Harris might be the successor to Justice Breyer. There have been news reports that she and Dr. Jill haven't exactly hit it off, and her effectiveness as a Vice President has been criticized. (Maybe, like me, she thought the VP wasn't supposed to be doing anything.) Moving her over to the Supreme Court might solve some of these problems for the Biden Administration. But if she were the nominee, and if the Senate confirmation vote were deadlocked along party lines (likely), would she be able to cast the tie-breaking vote for herself? I honestly don't know, but it doesn't seem like she should. So now I'm thinking VP Harris will stay right where she is.

Anita Hill. She has a distinguished career on the Equal Employment Opportunity Commission and as a law professor. Plus, it would be interesting, at least, to see the awkwardness that would ensue if she was on the Court with Justice Clarence Thomas, the gentleman she accused of inappropriate behavior back in the early 1990s. But assuming the President is looking for someone who can be on the Court for 30-40 years, Ms. Hill may not be the best choice. She'll be 66 in July.

Who do you think the nominee will be? Speculate away in the comments, and feel free to choose someone other than these six. If you pick one of the long shots and turn out to be correct, there you will receive a special prize, selected especially for you!