Former Vice President Joe Biden has promised that if elected in November, he will appoint the first black woman to the Supreme Court — a step he called “long overdue.”
One of the leading candidates is 43-year-old California Supreme Court Justice Leondra R. Kruger. A former Justice Department lawyer who argued a dozen cases before the high court in Washington before returning to California, she is a favorite of former Obama administration lawyers and Democratic Senate advisors.
“She should be on anyone’s short list” for the Supreme Court, said Christopher Kang, a deputy counsel to Obama who oversaw the selection and vetting of 220 appointees to the federal court.
“Leondra Kruger is one of the handful of the most brilliant attorneys with whom I’ve ever worked,” said Washington attorney Neal Katyal, who was acting solicitor general during Obama’s first term. “I asked her to be my principal deputy solicitor general because I knew the advice she’d give me would be meticulous and deeply thought out, and most of all, honest: I cannot imagine a better justice.”
Kruger grew up in South Pasadena, the daughter of two pediatricians. She attended the Polytechnic School in Pasadena and earned an undergraduate degree at Harvard University and a law degree from Yale, where she served as editor in chief of the Yale Law Journal.
She moved to Washington, where she was a law clerk for Judge David Tatel, a prominent liberal on the D.C. Circuit Court of Appeals, and for Supreme Court Justice John Paul Stevens. She later worked for a private law firm in Washington, taught for a year at the University of Chicago and worked as lawyer in the U.S. solicitor general’s office in both the Bush and Obama administrations.
She was only 38 when Gov. Jerry Brown appointed her in 2014 to California’s high court. There she has emerged as a moderate on a liberal-leaning court. In 2018, she spoke for the court in a 4-3 ruling that upheld a voter initiative on “DNA fingerprints” that calls for taking a DNA swab of people who are arrested for felony crimes.
Kruger said that swabs did not violate California’s constitutional protection for privacy, and that the courts should do all they can to respects voters’ wishes.
“We have often said that ‘it is our solemn duty to jealously guard’ the initiative power secured by the California Constitution and that we accordingly may not strike down voter measures ‘unless their unconstitutionality clearly, positively, and unmistakably appears,’” she wrote in People vs. Buza.
Kruger is soft-spoken and modest, and she has been a cautious judge, which could make her an especially appealing candidate if Republicans keep control of the Senate.
“I know her well, and I think she would be a superb choice,” said former Obama Solicitor Gen. Donald Verrilli Jr.. “She has a powerful intellect and she’s a careful thinker. She is not rigidly ideological, but fair, open-minded and prudent. And those are the qualities you want in a justice of the Supreme Court.”
Biden is not the first presidential candidate to pledge to diversify the high court. In 1980, Ronald Reagan pledged to select the first woman, and did so a year later when he appointed Justice Sandra Day O’Connor.
A decade later, White House lawyers for President George H.W. Bush were in search of a conservative African American who could be appointed to replace the aging Justice Thurgood Marshall, a civil rights legend and the court’s first black justice. There were no obvious candidates on the federal bench.
So they turned to Clarence Thomas, then the outspoken 41-year-old director of the Equal Employment Opportunity Commission, and appointed him in 1990 to the U.S. appeals court for the District of Columbia. A year later, when Marshall retired, Thomas was chosen for the Supreme Court.
All of the Supreme Court justices, with the exception of Elena Kagan, came from a federal appeals court. But there are only four black women now serving on federal appellate courts, and all of them are over 65.
“There are many outstanding African American women who would make terrific Supreme Court justices,” said Nan Aron, president of the Alliance for Justice, a coalition of progressive groups. But she said the search should not be confined to federal appeals courts because Senate Majority Leader Mitch McConnell (R-Ky.) blocked action on several of Obama’s black nominees to those benches.
The other oft-mentioned candidate if Biden wins the presidency is U.S. District Judge Ketanji Brown Jackson.
She is a 49-year-old U.S. district court judge in Washington, D.C., who was considered by the Obama White House for the Supreme Court nomination in 2016 that went to Judge Merrick Garland. She too has backers among the lawyers who worked for Obama and for Senate Democrats.
Jackson grew up in Miami, the daughter of a lawyer and a school principal. She has undergraduate and law degrees from Harvard University and clerked for three federal judges, including Justice Stephen G. Breyer. Before President Obama appointed her as a federal judge in 2013, she worked in a private law firm, was a federal public defender and served as vice chair of the U.S. Sentencing Commission.
In November, she issued a 120-page opinion that rejected President Trump’s claim of “absolute immunity” to prevent former White House counsel Donald McGahn from testifying before a House committee. She said the claimed immunity “appears to be a fiction that has been fastidiously maintained over time” by White House lawyers, even though it has not been accepted by the courts.
“Because compulsory appearance by dint of a subpoena is a legal construct, not a political one, and per the Constitution, no one is above the law,” McGahn may not refuse to testify, she wrote. Trump’s lawyers appealed, and the full D.C. Court is reconsidering her decision.