Thread by @DavidLat

1/ THREAD. WOW.... #SCOTUS #appellatetwitter

https://twitter.com/SCOTUSblog/status/1486383533308399618

2/ Check out this tweet from last week by @JeffreyToobin—quite prophetic:

https://twitter.com/JeffreyToobin/status/1483197268828295170

3/ I think two of the leading contenders for Justice Breyer's #SCOTUS seat, Judge Ketanji Brown Jackson (D.C. Cir.) and Justice Leondra Kruger (California Supreme Court), would be difficult to oppose.

https://twitter.com/steve_vladeck/status/1486384509843038210

4/ Justice Leondra Kruger in particular would be hard to challenge—she's incredibly qualified AND she has been fairly moderate as a California Supreme Court justice. If she replaces Justice Breyer, I don't think the #SCOTUS balance shifts much.

5/ In fact, Justice Kruger might be more moderate than some on the hard left might want. But I think it would be hard for them to complain too much; she would be the first Black woman on #SCOTUS, and she's only 45.

6/Judge Ketanji Brown Jackson (D.C. Cir.), a former Breyer clerk, might move #SCOTUS slightly to the left if she replaces her former boss. She's a little older than Justice Kruger, 51 to Kruger's 45. (So this might be KBJ's last shot.)

7/ As to whether Judge Brown or Justice Kruger has the edge for the #SCOTUS seat, honestly I think it's a toss-up right now, and a lot will depend on (a) what further vetting uncovers and (b) how they click with President @JoeBiden in interviews.

8/ The age thing cuts both ways. Judge Ketanji Brown Jackson, 51, is older than Justice Leondra Kruger, 45.

So you might think: advantage Kruger, she's younger.

BUT another arg: put up Judge Brown Jackson now, and save Justice Kruger for the next spot.

9/ At 45, Justice Kruger will still be a viable #SCOTUS nominee for several years.

President @JoeBiden promised to put the first Black woman on the Court—but there's no reason he can't appoint two!

10/ And Justice Leondra Kruger is really one of the strongest #SCOTUS picks for a Democratic president, period—regardless of demographics or race or gender. #appellatetwitter

11/ As @prof_jpc notes, another possible contender is Judge Michelle Childs (D.S.C.), 55, currently a nominee to the D.C. Circuit. She has strong support from @WhipClyburn (D.S.C.), a close Biden ally. She'll be interviewed surely.

https://twitter.com/prof_jpc/status/1486387518778056713?s=20

12/ Interesting thought from @spence_cohen—but my understanding is that Justice Kruger really likes her current job. She passed on the opportunity to be nominated to the 9th Cir. She and her husband, Brian Hauck, love CA.

https://twitter.com/spence_cohen/status/1486390633862508553

13/ Of course, Justice Kruger would be willing to leave CA to sit on #SCOTUS. But for a seat on the D.C. Circuit? I'm not so sure....

(Also, no offense to admin-law nerds, but I think California Supreme's docket is more interesting, unless you love admin.)

13/ Recall also that Justice Kruger was offered the chance to be nominated as Solicitor General—but again, she and Brian and their two kids really like California, where she's from.

If she passed on SG for that reason, I don't think she'd take D.C. Cir.

14/ As for other nominees, take a look at the multiple Black women that President @JoeBiden has placed on the circuit courts—in anticipation of exactly this #SCOTUS vacancy. He has created a great bench for himself (pun intended).

15/ If President @JoeBiden is willing to look beyond the circuit courts for his #SCOTUS nominee—and maybe he's not, bc he has such a wealth of candidates—I have long mentioned Judge Leslie Abrams Gardner (sister of @StaceyAbrams).

https://twitter.com/DavidLat/status/1315454571788021760

16/ Please note: in this thread on possible #SCOTUS picks, I am being predictive, not normative. Last time I checked, I wasn't #POTUS, so it's not my choice. ;-)

https://twitter.com/CollinSealsEsq/status/1486392925529329664?s=20

17/ The @KamalaHarris idea is interesting (although query whether she'd want it).

Credit where credit is due: @TomGoldsteinSB identified Kamala Harris as a top #SCOTUS candidate back in... 2012! She was California AG back then.

bit.ly/3H4LQXP

18/ One factor weighing in favor of Judge Ketanji Brown Jackson: putting her on #SCOTUS would free up a seat on the powerful D.C. Circuit, as @prof_jpc notes. This is not the case with Justice Kruger, who sits on a state court.

https://twitter.com/prof_jpc/status/1486387518778056713

19/ For ease of reference, here are President Biden's nominees/appointees to the circuit courts. #SCOTUS #appellatetwitter

20/ The Black women on the list (w/ages)

- Ketanji Brown Jackson, 51
- Candace Jackson-Akiwumi, 42-43
- Tiffany Cunningham, 45
- Eunice Lee, 51-52
- Holly Thomas, 42-43
- Nancy Abudu ('96 college)
- Michelle Childs, 55
- Arianna Freeman ('01 college) #SCOTUS

21/ Interesting informal poll by @legalwritingpro on possible #SCOTUS nominees has Judge Ketanji Brown Jackson way out in front.

https://twitter.com/legalwritingpro/status/1486395600446783488

22/ Here are my #SCOTUS nominee odds right now (subject to change, expressed as %s):

Judge Ketanji Brown Jackson: 40%
Justice Leondra Kruger: 30%
VP Kamala Harris: 15%
Judge Michelle Childs: 10%
Field: 5%

#appellatetwitter

23/ Why is the field so unlikely in my #SCOTUS nominee odds?

For better or worse, Supreme Court nominations are very predictable. The process doesn't like "surprises."

(The last true "surprise" was Harriet Miers—anyone remember her?)

#appellatetwitter

24/ Some have asked: why are we focusing only on Black women for #SCOTUS?

It's because President Biden, as a nominee, promised back in February 2020 to nominate a Black woman to the Supreme Court.

wapo.st/3u2Daxe

25/ Why did President Joe Biden promise to put the first Black woman on #SCOTUS?

He has never said so explicitly, but I have always seen it as an atonement of sorts for how he as a senator handled the allegations made by Anita Hill against Clarence Thomas.

26/ We can debate whether President Biden's promise was a good thing normatively, a smart thing politically, etc.

But for now, I'm not debating the wisdom of his promise; I'm just assuming he'll keep his promise as I predictively handicap the #SCOTUS field.

27/ Several non-judges, including women I admire and respect greatly, have been mentioned as #SCOTUS contenders. E.g., @Sifill_LDF, @ProfMMurray.

But as I've noted, #SCOTUS process tends to be very predictable, and putting up a judge is the predictable move.

28/ Don't forget that President Biden has practically no wiggle room in a 50-50 Senate. If the Democrats had, say, 55 seats, that would be different.

And remember, the filibuster is dead for #SCOTUS nominees post-Gorsuch. #appellatetwitter

29/ Because President @JoeBiden has hardly any room to maneuver in the Senate, I think he will be even safer and more predictable in his #SCOTUS pick than usual (and usual is already pretty freaking predictable).

30/ Age is why I think Judge Childs, 55, is a long shot.

Yes, RBG was 60 at the time she was appointed to #SCOTUS. But this administration is more focused on youth in nominees than past Democratic administrations.

https://twitter.com/richsignorelli/status/1486407516040871941

31/ As noted by @AdamLiptak, Judge Michelle Childs wouldn't contribute to Harvard/Yale Law domination of #SCOTUS, as a University of South Carolina Law grad. But she's almost 56 (in March), and this administration prioritizes youth.

https://twitter.com/adamliptak/status/1486388714473508871

32/ One point in favor of Justice Leondra Kruger for #SCOTUS: she would be the youngest member of the Supreme Court.

Judge Ketanji Brown Jackson would not; Justices Gorsuch and Barrett would be younger.👇

https://twitter.com/voter_indie/status/1486389397603893256?s=20

33/ Correction: Judge Jackson is 51, not 55. So only Justice Barrett would be younger than KBJ. But Justice Kruger is still the pick who would definitely be the youngest member of #SCOTUS.

(Thanks @kurtdwalters!)

https://twitter.com/kurtdwalters/status/1486416479893471235

34/ I see Justice Kruger as a Kagan-like pick: impeccable credentials, former Supreme Court clerk, alumna of the Solicitor General's Office, not crazy liberal (or not able to be depicted as such)—& the youngest & arguably most brilliant of #SCOTUS contenders.

35/ Which way do Justice Leondra Kruger's youth and brilliance cut for conservatives?

On the one hand, a younger, super-brilliant liberal on the Supreme Court is "scarier."

On the other hand, #SCOTUS as an institution is stronger with great minds.

36/ Recall that Justice Antonin Scalia pushed for the appointment of Elena Kagan to #SCOTUS—not in spite of, but because of, her intellect—even if she might make his job harder (e.g., by writing fierce dissents).

cnn.it/3H5SblO

37/ Per @AP, top #SCOTUS contenders are 5 judges: Ketanji Brown-Jackson (D.C.), Leondra Kruger (Cal. Supreme), Holly Thomas (9th Cir.), Candace Jackson-Akiwumi (7th Cir), Michelle Childs (D.S.C., nominated to D.C. Cir.).

bit.ly/3tYKTMZ

38/ It's customary for #POTUS to interview the possible #SCOTUS nominees—and sometimes it makes a difference.

I could see the interviewees being these 5 judges. He doesn't need to interview @VP Kamala Harris (but would instead have a convo with her).

39/ The more I think about it, the less likely @VP Kamala Harris is as a #SCOTUS nominee. It's just too... messy (if she'd even want it).

What happens if the Senate is tied? Who replaces her as veep?

Going to revise my odds.

https://twitter.com/DavidLat/status/1486402301162139656

40/ As a conservative, @EdWhelanEPPC won't love this next #SCOTUS pick.

But his analysis of Judge Ketanji Brown Jackson v. Justice Leondra Kruger is interesting. (If you're #TeamKruger, here are your talking points; you're welcome.)

bit.ly/33MaG0l

41/ @EdWhelanEPPC agrees with me that Justice Kruger would be a Kagan-like #SCOTUS pick, while Judge Jackson would be more like Sotomayor.

This is in terms of biographical details but also, I think, how far left they'd be.

https://twitter.com/EdWhelanEPPC/status/1486432902577598473

42/ Adding this to the end of the thread—a more formal (and organized) write-up of my thoughts on the top #SCOTUS contenders.

bit.ly/3H9RIPk #appellatetwitter