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Two Top Candidates for Supreme Court Emerge

January 27, 2022 by Tom Ramstack
Two Top Candidates for Supreme Court Emerge
Judge Ketanji Brown Jackson.

WASHINGTON – Justice Stephen Breyer’s announcement Wednesday that he plans to retire this year puts two female judges on the short list to replace him at the Supreme Court.

One of them is Ketanji Brown Jackson of the U.S. Circuit Court of Appeals for the District of Columbia and the other is Leondra Kruger of the California Supreme Court. 

Jackson has been mentioned as a contender for the Supreme Court ever since Joe Biden said during his campaign for president that he would like to nominate a Black woman for the next opening.

White House press spokeswoman Jen Psaki repeated the pledge Wednesday. “The president has stated, and reiterated, his commitment to nominating a Black woman to the Supreme Court and certainly stands by that,” Psaki said.

When Biden took office, only five of 179 federal appellate court judges were Black women. There will be 16 if all of his nominees are confirmed.

Brown, 51, was confirmed to the Circuit Court of Appeals by the Senate only last summer. Before that, she served as a judge on the U.S. District Court for the District of Columbia from 2013 through 2021.

She was born in Washington, D.C., attended Harvard Law School and is a former clerk for Breyer at the Supreme Court.

Her notable career achievements include a role on the U.S. Sentencing Commission when it recommended reduced sentences for drug offenses. It was a reaction to criticisms that the U.S. government’s self-proclaimed war on drugs led to overly harsh punishments.

The commission’s recommendations contributed to the early release of thousands of prisoners convicted of possessing illegal drugs, such as cannabis and crack cocaine.

As a U.S. District Court judge, Jackson became an occasional adversary of President Donald Trump.

In her 2018 ruling in American Federal of Government Employees v. Trump, Jackson invalidated parts of three presidential executive orders that would have limited the right of federal employees’ unions to collective bargaining.

In 2019, she overruled Trump when she ordered his former White House counsel to testify to Congress as it investigated improprieties in the 2016 election by his staff members. Trump had told him to ignore the congressional subpoena. Brown famously said in her ruling that “presidents are not kings.”

She won confirmation to the appeals court by a 53-to-44 margin, which included all Democratic senators who voted. The same senators who voted for her last summer still hold office, meaning they would be likely to confirm her a second time to the Supreme Court.

Jackson is considered primarily a liberal who would be replacing another liberal. Taking over for Breyer would keep the current ratio of six conservatives to three liberals.

Kruger’s political orientation normally is considered more middle-of-the road but someone who often provides a swing vote. She has demonstrated an ability to convince other judges of her positions on the California Supreme Court.

Previously, she was a top Justice Department attorney, where she ascended to become acting principal deputy solicitor general. As an advocate for the federal government, she argued a dozen cases before the U.S. Supreme Court.

One of the more controversial cases during the Obama administration was Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. Her legal brief aggressively argued against a “ministerial exception” in employment discrimination cases.

The ministerial exception allows churches to seek the dismissal of some employment law claims filed by employees, particularly when they were dismissed for reasons of morality. The exception is intended to avoid government entanglement with religious doctrine. 

Kruger argued that religious organizations should get no greater right to fire employees than other nonprofit organizations, such as labor unions or social clubs.

She was appointed to the California Supreme Court in 2015 at the age of 38 while it still was dominated by Republican appointees. Since then, it has shifted to more Democratic control.

In 2018 she wrote an opinion for the court in People v. Buza that overturned California’s Proposition 69. The law required police to collect DNA samples from anyone arrested for a felony.

The Republican conservatives voted with her while the Democratic appointees voted against overturning the law.

In a style typical of Kruger, she explained her opinion not as an attempt to side with conservatives but an effort to uphold case precedent based on constitutional law. 

Tom can be reached at tom@thewellnews.com.

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