Progressives are actively strategizing around who they want President Biden to nominate to the Supreme Court.
Democrats have largely avoided discord over the pending decision both publicly and in private. While liberals have a list of priorities and personal preferences, activists and operatives say the slate of candidates coming into form offer candidates who are highly attractive to people throughout the party.
As a result, they see the pick as a unifying moment across the ideological spectrum after months of battles over Biden’s legislative agenda.
“Very often the left gets put into a situation where we have to choose representation over politics,” said Rachel O’Leary Carmona, executive director of the Women’s March, one of several groups that led an organizing effort calling on Justice Stephen Breyer to step down to ensure Biden could choose and a Democratic Senate could confirm his successor.
“The candidates who are being seriously floated do not force the left to make a tradeoff of those things. That’s why it’s been relatively easy,” she said.
Biden’s declaration that he would nominate a Black woman fulfilled a campaign pledge and was seen as welcome news by many Democrats. As a candidate, Biden was elevated by Black voters during the 2020 campaign.
“The lack of polarization speaks to the deep bench of Black women who are qualified and overqualified for this role,” Carmona said.
Nearly a dozen names have been mentioned in conversations around the selection process. Senate Majority Leader Charles Schumer (D-N.Y.) said he wants to see a confirmation move “quickly” through the upper chamber, mirroring the one-month time frame it took a GOP-led Senate to confirm former President Trump’s nomination of Justice Amy Coney Barrett.
Ketanji Brown Jackson, a 51-year-old Harvard Law School graduate sitting on the U.S. Court of Appeals in Washington, D.C., is the front-runner and has the early support of many Democrats.
Jackson served as a clerk for Breyer and two other justices, giving her experience at the top court that is seen as a positive.
Some progressives, however, still insist on keeping their options open. They like Jackson. And they believe she can get confirmed. But they also see merit in Candace Jackson-Akiwumi, a federal public defender; Sherrilyn Ifill and Janai Nelson, president and associate director-counsel the NAACP Legal Defense Fund, respectively; and Nancy Abudu, the strategic litigation director at the Southern Poverty Law Center.
There have been disagreements between progressives and moderates about the court over the last year.
Progressives such as Sen. Elizabeth Warren (D-Mass.) have pressed the White House to seriously consider adding more seats to the Supreme Court to make up for its conservative majority. Centrists have resisted such calls, and the administration has not embraced the proposal.
But those differences have largely been left in the rearview mirror amid excitement over the coming high court pick.
“The conversations I have participated in have been really assuring in that the consensus is we would be happy with any of these women,” said Kim Tignor, co-founder of She Will Rise, an advocacy group that has been pushing the White House for more Black nominees to fill critical judicial appointments nationwide.
“No one’s name in the mix has proven to be a wedge within the different coalitions working on this,” she said.
One possible exception is U.S. District Judge J. Michelle Childs, who is House Majority Whip James Clyburn’s (D-S.C.) top choice. Clyburn is a key supporter of Biden’s whose endorsement ahead of the South Carolina Democratic presidential primary was critical to Biden’s victory. He had also pressed Biden to commit to nominating a Black woman to the Supreme Court.
Clyburn has argued that Childs would likely win GOP support and be confirmed in a bipartisan vote. Biden nominated her to the D.C. Circuit Court of Appeals at the start of the new year.
But her work for corporations has drawn opposition, much of it voiced privately, from liberals who believe Biden should pick one of the other formidable candidates for the job.
“There’s general agreement that we don’t need someone who’s been a management-side attorney on the Supreme Court,” said Molly Coleman, executive director of People’s Parity Project, without mentioning Childs by name. “That’s not an experience that’s been underrepresented.”
A prominent grassroots leader aligned with Sen. Bernie Sanders (I-Vt.) went further, calling the idea that Childs may be selected “highly concerning.”
The discussions about who liberals don’t want has nonetheless been limited for now, multiple sources said.
Instead, there’s a sentiment that while most names being seriously talked about are progressive on issues like health care, the environment and women’s rights, there’s also an acceptance that Biden and top advisers in his ear will not choose a nominee who will alienate key centrist senators and be seen as too left wing by his moderate base.
“We’re not talking about putting an avowed socialist on the Supreme Court,” said Coleman. “We’re talking about people who have had incredibly successful legal careers in a field that is not radical, that’s really about doing the best they can under a very stringent set of rules.”
“There’s nobody Biden could pick who is actually going to be radical,” she said. “Nobody who’s so far left.”