Now that Joe Biden likely has 50 votes to confirm judges, we need to talk about the Supreme Court. Biden is very likely to replace at least Stephen Breyer over the course of this upcoming term. During the campaign season, he committed to placing a Black woman on the Supreme Court. Given the consistent and virtually universal support that Black women have given the Democratic Party over the last decades, making decisions with their needs in mind is truly the least that elected officials can do.
But simply putting any Black woman on the Supreme Court doesn’t necessarily do that. It is important for Biden to select not just for superficial representation. He needs to find someone who can meet the moment over the next several decades of racial and economic justice activism. Searching for traditionally credentialed candidates is not necessarily going to cut it.
This is especially true given that the life tenure rules incentivize presidents to nominate candidates who are as young as possible (ideally someone in their 40s). Given these considerations, though, Biden’s promise will hopefully force him to look at nontraditional backgrounds.
There have been 13 Supreme Court confirmations since Sandra Day O’Connor was confirmed in 1981. Twelve of those thirteen nominees were judges on one of the federal circuit courts at the time of their nomination. The only exception to this rule was Elena Kagan, who was Solicitor General. (This is also true of 3 of the 4 failed nominees during this time: Robert Bork, Douglas Ginsburg, and Merrick Garland, but not Harriet Miers.) O’Connor’s nomination, the result of a Reagan campaign promise, came from a lower state court judgeship.
But only four current circuit judges are Black women: O. Rogeriee Thompson, Bernice Donald, Johnnie B. Rawlinson, and Amalya Kearse. All four of them are at least 68 years old (Kearse is 83). None of them will be (or should be) on a Supreme Court shortlist for that reason alone.
This means Biden has to look elsewhere for his nominee. Ketanji Brown Jackson, who was on Obama’s 2016 shortlist, is likely to get a long look. She has public defense experience and served on the U.S. Sentencing Commission, which would add welcome perspective to the Court. Judge Jackson would be an acceptable nominee. NAACP Legal Defense and Educational Fund head Sherrilyn Ifill has also been speculated as a potential choice. She is one of the highest profile Black women attorneys in the country and an extremely effective advocate (although I also think she is likely also too old to be the correct pick).
But this is an opportunity to broaden the scope of who we think of as eligible.
As an example, let’s consider Juval Scott. If your first reaction is “who?”, you’re not alone. Ms. Scott currently serves as the Federal Public Defender for the Western District of Virginia and is also a professor at Washington and Lee School of Law. This role is the mirror image of a U.S. attorney; you’re overseeing an office handling a large swath of criminal cases and making strategic decisions about how best to advocate for your clients and develop the law.
Ms. Scott is as credentialed and compelling as any other potential nominee. She got her bachelor’s degree in biology and chemistry from an HBCU, Xavier University of Louisiana. She then graduated from Indiana Law in 2002, working briefly in private practice before joining a federal defender’s office in 2005. After spending 13 years working in Indiana, then Wisconsin, then as an attorney training other federal defense lawyers, Ms. Scott was appointed to her current Federal Public Defender role in Virginia in 2018.
Ms. Scott continues to give trainings for defense lawyers in addition to her FPD duties. I attended one such training in 2019, entitled “Effective Use of Data and Experts to Litigate Race”. A quick search returns additional titles such as “Race and the Fourth Amendment: Challenging Assumptions About Reasonableness” and “Race in the Federal Criminal Court: Strategies in Pursuit of Justice”.
Why is this important? Well, in part, it’s because being a Supreme Court justice is still an advocacy position. In order to do the job well, you need to make the case to other judges, other lawyers, and the general public that the law should develop in a certain way.
Scalia was good at this. Concurrences, dissents, and even oral argument became mere vehicles for his worldview. For someone joining a minority on the Court that is 5-4 on its best days (and usually 6-3), this will be a big part of how they can influence the conversation.
Dissents are often overlooked. The conventional wisdom is that since they hold no precedential value, they are less important or even not important at all. But my law school experience, and my experience reading Supreme Court cases after law school, still focused heavily on dissenting opinions. Those dissents often establish principles that serve as goalposts for students learning the law and for advocates making the next set of arguments.
And the various trainings that Ms. Scott has developed demonstrates the kind of principles she would feel comfortable making in her written opinions. The subjects she covers are built from an understanding of the nuances of equity vs. equality, from an acknowledgement of this country’s checkered legal history, and from an awareness that charged conversations are not only possible, but useful. And they demonstrate a creativity that will be important to a deliberative body whose default setting is to make up rules as it goes.
Of course, Ms. Scott would also be a more reliable vote on issues such as criminal justice, where the political spectrum doesn’t necessarily dictate outcomes. Consider that Merrick Garland was a tough-on-crime prosecutor, for example, one who would likely have continued the recent erosion of the Fourth Amendment. California Supreme Court Justice Leondra Kruger, another person with Supreme Court buzz, is considered more of a swing vote in her current role. And, of course, there are three former prosecutors already on the Supreme Court (Gorsuch, Alito, Sotomayor). Yet, it’s been decades since the defense perspective has been directly represented at a case conference.
But will the Biden administration even think about advocates like Ms. Scott? Well, they did send a letter to senators asking for public defenders and civil rights attorneys as potential district court nominees. The admin is signaling that they understand that the bench is overstocked with prosecutors and corporate attorneys as a whole. And if any senator is likely to follow through here, it may be Tim Kaine, himself a civil rights attorney who took death penalty cases early in his career.
The problem, though, is that everybody treats the Supreme Court as special. (There’s at least some reason to, given how politicized the process has become over the last 30 years.) And while Biden talked a big game in the debates about choosing to be a public defender rather than a prosecutor, I wrote at length about how the Harris pick undid most of the goodwill he built up from that sentiment. I don’t yet trust Biden to apply this principle to any upcoming Supreme Court nomination.
It wasn’t that long ago that the conventional wisdom was that public defenders would be unconfirmable as judges due to the public’s appetite for tough-on-crime posturing. I think it’s clear that those days are fading quickly, but it’s unclear if Biden (or Harris) will come to that conclusion by the time they have to make a decision on a Supreme Court nominee.
But he should. If he’s serious about criminal justice, his high-profile nominees should look like Juval Scott in background as well as appearance.