White House vetting of candidates for Supreme Court vacancy well under way

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The White House selection process for a Supreme Court nominee is well under way and on target for President Biden to name his choice by month’s end, sources tell Fox News.

The president met Thursday with Democrats on the Senate Judiciary Committee who will lead the confirmation process for a nominee to replace the retiring Justice Stephen Breyer.

Biden has said he would make a decision by the end of February and that his choice will be a Black woman.

Sources say the White House has quietly begun the vetting process with more than a dozen names (see below), a broad mix of federal and state jurists, academics and lawyers from groups like the NAACP Legal Defense Fund.

President Biden speaks on the retirement of Supreme Court Associate Justice Stephen Breyer in the Roosevelt Room of the White House in Washington, D.C., Jan. 27, 2022.
(Yuri Gripas/Abaca/Bloomberg via Getty Images)

That includes three names consistently being given prominent consideration, say sources: D.C.-based federal appeals court Judge Ketanji Brown Jackson, California Supreme Court Justice Leondra Kruger and U.S. District Court Judge J. Michelle Childs from South Carolina.

Other names reportedly under scrutiny include federal judges Candace Jackson-Akiwumi and Holly Thomas, and NAACP Legal Defense and Educational Fund’s president Sherrilyn Ifill.

As of early this week, there have been no face-to-face meetings of any candidates with White House officials leading the search. That group tapped by Biden includes Vice President Kamala Harris, White House chief of staff Ron Klain, White House counsel Dana Remus and White House adviser Cedric Richmond.

But vetting continues with candidates being asked to provide personal background and financial information. The FBI, as per usual practice with federal nominees, is helping gather the information, a process that includes contacting friends and colleagues of the candidates.

Sources say the expectation is that the names will be narrowed to a manageable list of perhaps 3-5 in coming days, and that President Biden does plan to meet personally with some or all of the finalists in private.

Daily “strategy sessions” are being conducted at the White House, and Biden is spending evenings and weekends reviewing the names. White House press secretary Jen Psaki said this week that Biden has been given briefing books with cases and rulings that those with judicial experience have handled.

“What the president has been focused on over the course of the last several days is reviewing and consulting with internal team members on a group of qualified nominees,” Psaki said Tuesday. “He also has been engaging, as you all know, with Democrats and Republicans.”

Biden and his team have “also spoken to the range of additional members of Congress and outside legal experts and that engagement will continue.”

But to “protect the process,” Psaki did not commit to having visitor logs publicly released of any meetings with potential nominees at Biden’s home in Delaware, where he frequently spends weekends and holidays.

The White House is also adding to its team of trusted officials who will help the eventual nominee navigate the Senate confirmation process. Biden tapped former Democratic Alabama Sen. Doug Jones as the experienced “sherpa” to guide that process, which would include private meetings with senators and practice sessions known as “murder boards” to prepare the nominee for expected tough Senate committee questioning.

Office space has been set up at the adjacent Eisenhower Executive Office Building for Jones and other outside advisers. The nominee will also get a suite of offices to prepare for the confirmation.

Sources say the White House has given particular attention to hearing from outside groups for their views, one reason for a long list of possible Black female lawyers being circulated.

Some progressive groups have publicly and privately expressed concerns about some of the nominees, and whether they would reliably carry on Breyer’s liberal judicial legacy.

Judge Childs, in particular, has earned some left-leaning angst over her past work as a private lawyer defending corporations, including workplace discrimination claims. Her enthusiastic public support by Republican senators Lindsey Graham and Tim Scott has created further progressive anxiety.

Now some liberal senators have weighed in, with Bernie Sanders, I-Vt., telling Politico, “You want somebody who is going to be reflective of the needs of working families and understands that we are moving towards an oligarchy in this country.”

Sources confirm Sanders and Senator Elizabeth Warren, D-Mass., are among the key lawmakers in his party Biden will be courting for their support.

Ketanji Brown Jackson, nominated to be a U.S. Circuit Judge for the District of Columbia Circuit, is sworn in to testify before a Senate Judiciary Committee hearing on pending judicial nominations on Capitol Hill, April 28, 2021, in Washington, D.C.
(Kevin Lamarque-Pool/Getty Images)

Childs defended her past work when she appeared before the Senate during her 2010 confirmation for her district court seat.  

“I believe my record supports that I allow litigants to access the court and have their disputes adjudicated in a fair and impartial manner under a fair and independent legal system,” she said.

Sources say the selection process is still on schedule for a nominee to be chosen by month’s end, before the president’s March 1 State of the Union address before Congress. Those sources say there is already a strong push for a prime-time announcement ceremony at the White House as justices Neil Gorsuch and Brett Kavanaugh received during President Trump’s term.

Supreme Court Associate Justice Stephen Breyer announces his retirement in the Roosevelt Room of the White House in Washington, Thursday, Jan. 27, 2022. President Biden looks on. 
(AP Photo/Andrew Harnik)

Possible Nominees for a Supreme Court Vacancy

Supreme Court Justice Stephen Breyer is retiring at the end of the current term later this summer. President Biden indicated he would nominate a Black woman to replace Breyer.

This updated list, compiled from a number of sources, reveals some potential choices.

Judge Ketanji Brown Jackson, DC Circuit U.S. Court of Appeals, Washington    

Ketanji Brown Jackson, nominated to be a U.S. Circuit Judge for the District of Columbia Circuit, testifies before a Senate Judiciary Committee hearing on pending judicial nominations on Capitol Hill, April 28, 2021, in Washington, D.C. 
(Kevin Lamarque-Pool/Getty Images)

Born in 1970, Jackson assumed her federal appeals court seat in June 2021 in one of Biden’s first judicial nominations. She was a federal district court judge in Washington, D.C., from 2013 to 2021, served on the U.S. Sentencing Commission and was a former Breyer law clerk.

Jackson was a surprising finalist for the high court seat nomination that went to Merrick Garland in 2016, when she was still a trial judge.

In 2019, she presided over a dispute between former White House Counsel Don McGahn and the House Judiciary Committee, which sought to enforce a subpoena against him. Jackson rejected the Trump administration’s claim of “absolute immunity,” concluding that “presidents are not kings.”

Jackson’s elevation to a high-profile federal appeals court seat put her near the top of possible high court candidates, given Biden’s pledge to name a Black woman for any vacancy.

Her husband, Patrick Jackson, is the twin brother of former House Speaker Paul Ryan’s brother-in-law, William Jackson. The Wisconsin Republican supported her nomination to her current job, saying, “Our politics may differ, but my praise for Ketanji’s intellect, for her character, for her integrity is unequivocal. She’s an amazing person, and I favorably recommend her consideration.”

Justice Leondra Kruger, California Supreme Court

In this Dec. 22, 2014, file photo, Leondra Kruger addresses the Commission of Judicial Appointments during her confirmation hearing to the California Supreme Court in San Francisco.
(AP Photo/S. Todd Rogers, Pool, File)

Born in 1976, Kruger is a former clerk for Justice John Paul Stevens and a former Obama Justice Department official, arguing 12 cases before the Supreme Court.

Given her sterling resume and age, Kruger would be a strong favorite for a Supreme Court seat if Biden holds to his campaign pledge to nominate a Black woman.

While she is considered somewhat of a moderate on the state high court and is often a “swing” or deciding vote in close cases, state judges rarely receive serious consideration for the U.S. Supreme Court. The last was Justice Sandra Day O’Connor in 1981.

Kruger’s parents were both pediatricians, her mother Jamaican, her late father Jewish.

Judge J. Michelle Childs, U.S. District Court for South Carolina; nominated for D.C. Circuit appeals court seat

Judge J. Michelle Childs, who was nominated by President Barack Obama to the United States District Court, District of South Carolina, is seen on Capitol Hill in Washington, April 16, 2010, during her nomination hearing before the Senate Judiciary Committee.
(AP Photo/Charles Dharapak)

Born in 1966, Childs was nominated in December 2021 to serve on the high-profile D.C. Circuit appeals court, replacing the retiring Judge David Tatel.

She would be Biden’s second Black woman on the D.C. Circuit, along with Judge Ketanji Brown Jackson, but the Senate has not yet acted on her nomination.

We have reported that Rep. James Clyburn (D-S.C.) strongly pushed the White House to name the South Carolina-based Childs to this seat. The D.C. Circuit is seen as something of a professional stepping stone to the Supreme Court.

Recent justices who earlier served on that appellate bench include John Roberts, Clarence Thomas, Brett Kavanaugh and the late Ruth Bader Ginsburg and Antonin Scalia. She has been on the district court since 2010. The Detroit native attended the University of South Carolina’s law school.

Judge Candace Jackson-Akiwumi, 7th Circuit U.S. Court of Appeals

Candace Jackson-Akiwumi, U.S. circuit judge for the seventh circuit nominee for President Biden, speaks during a Senate Judiciary Committee confirmation hearing in Washington, April 28, 2021. 
(Tom Williams/CQ Roll Call/Bloomberg via Getty Images)

Born in 1979 in Norfolk, Virginia, Jackson-Akiwumi is the daughter of two judges: U.S. District Judge Raymond Alvin Jackson and former Norfolk General District Court Judge Gwendolyn Jackson.

Jackson-Akiwumi was a federal defender in Chicago until recently she became a partner in a D.C. law firm. Nominated by Biden in March 2021, she was one of three Black women named to appeals courts seats during the administration’s first months.

Judge Leslie Abrams Gardner, U.S. District Court for the Middle District of Georgia

Born in 1974, Abrams Gardner is a 2014 Obama appointee, and she has ruled in several high-profile election disputes in Georgia, the latest over counting provisional ballots. Her lack of federal appellate experience may be seen as a disadvantage when considering Supreme Court nominees. Her sister is Stacey Abrams, who has been mentioned as a Supreme Court pick, although she has no judicial experience and is running for governor. The sisters both attended Yale Law School at different times. 

Judge Holly Thomas, 9th Circuit U.S. Court of Appeals

Born in 1979, Thomas was confirmed Jan. 20, 2022, to the San Francisco-based appeals court. She previously worked in the Obama DOJ’s Civil Rights Division and at the NAACP LDF. 

Thomas was appointed in 2018 to the Los Angeles County Superior Court’s Family Law Division. Biden named her last year to become the second Black woman on the 9th Circuit.

A police officer patrols in front of the U.S. Supreme Court in Washington, D.C., Oct. 12, 2021. 
(Emily Elconin/Bloomberg via Getty Images)

Judge Eunice Lee, 2nd Circuit U.S. Court of Appeals

Born in 1970, Lee served as an appellate attorney in the New York City public defender’s office.

Her confirmation hearing for the appeals court seat included questions about comments she made in 1991 to her college newspaper, where she criticized Clarence Thomas’ Supreme Court nomination. She distanced herself from those comments in her Senate Judiciary Committee hearing.

Judge Wilhelmina Wright, U.S. District for Minnesota

Born in 1964 and known to friends and family as “Mimi,” Judge Wright has the unique distinction of serving on Minnesota’s district, appellate and state supreme courts. Before that she was a federal prosecutor in the state. In 2016, she became the first Black female federal judge from Minnesota.

Judge Tiffany Cunningham, Federal Circuit U.S. Court of Appeals

Born in 1976, Cunningham has a chemical engineering degree from MIT and a law degree from Harvard. She worked for years as a private attorney specializing in patent law. Cunningham was among President Biden’s first judicial picks to serve on the low-profile Federal Circuit, which handles patent, international trade and various federal claims, among its eclectic jurisdiction. No judge from this specialized appeals court has ever been elevated to the Supreme Court.    

Nancy Abudu, Southern Poverty Law Center, nominee to 11th Circuit U.S. Court of Appeals

The Alexandria, Virginia, native is the daughter of Ghanaian immigrants. As an SPLC attorney, Abudu has litigated a number of voting and civil rights cases. Before that, she was an ACLU attorney. She was nominated in December 2021 to sit on the Atlanta-based federal appeals court.

Arianna Freeman, Federal Community Defender Office in Philadelphia, and nominee to 3rd Circuit U.S. Court of Appeals

Freeman, a veteran public defender, was nominated to the Philadelphia-based appeals court just days before Justice Breyer announced his retirement. She would be the first woman of color on that bench.

Justice Anita Earls, North Carolina Supreme Court

Born in 1960, Earls won a 2018 election for a competitive seat on the state’s highest court. She has said her parents, a mixed-race couple, had to move from Missouri to Washington state to get legally married. She has worked as a civil rights attorney, and she founded the Southern Coalition For Social Justice.

Sherrilyn Ifill, NAACP Legal Defense and Educational Fund president

Civil rights leader Sherrilyn Ifill of the NAACP Legal Defense Fund speaks as the Rev. Al Sharpton of the National Action Network looks on at a news briefing outside the West Wing of the White House following a meeting with President Joe Biden and Vice President Kamala Harris July 8, 2021, in Washington, D.C. 
(Alex Wong/Getty Images)

Born in 1962, Ifill has no judicial experience, but many progressives and civil rights advocates have been promoting her. She is a cousin of late journalist Gwen Ifill, and their family emigrated from Barbados. Ifill appears regularly on television news shows on such topics as the judiciary and affirmative action. She is the author of “On the Courthouse Lawn: Confronting the Legacy of Lynching in the 21st Century.”

Ifill was also on President Biden’s Supreme Court Commission looking at possible changes to the court’s makeup.

Her age may be an impediment if Biden seeks a younger nominee who could presumably serve longer on the high court.

She had announced earlier her intention step down from the NAACP LDEF in spring 2022.

Melissa Murray, New York University Law School

Born in 1975, Murray is an expert in family and constitutional law and author of “Reproductive Rights and Justice Stories.” She is also a former law clerk to then-appeals court Judge Sonia Sotomayor. She testified before the Senate Judiciary Committee’s 2018 confirmation hearings for Brett Kavanaugh, opposing his Supreme Court nomination. Sources say that, in addition to getting some consideration for the Breyer high court seat, she is also being considered for a separate federal judgeship.

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