How Biden will choose the next Supreme Court nominee

With today’s reporting that Justice Stephen Breyer intends to retire, we now kick off our analysis of potential nominees to replace him. President Joe Biden previously promised to nominate a Black woman, and we assume he will keep that commitment. Two potential nominees therefore stand apart from all others: Leondra Kruger, a justice on the California Supreme Court, and Ketanji Brown Jackson, a judge on the U.S. Court of Appeals for the District of Columbia Circuit.

Both are well known to the White House team that will lead the nomination process. Kruger is a former Department of Justice attorney. Biden recently appointed Jackson to the court of appeals.

The president’s bottom-line calculus may reduce to the following. Jackson was recently confirmed by the Senate, making a Supreme Court confirmation process likely to go smoothly. Kruger has never faced Senate confirmation. That distinction matters because there is a good chance that Democrats will lose control of the Senate in a year — a timetable that would be important if the president’s nominee was substantially delayed or rejected. There is no known obstacle to Kruger being confirmed by a Democratic Senate, just the possibility of some unknown surprise. On the other hand, Kruger is six years younger than Jackson (45 versus 51) and is — in the view of some — even more dynamic and intellectually stronger.