Justice Stephen Breyer’s retirement from the Supreme Court opens the way for President Joe Biden to nominate the court’s first Black woman — and California Supreme Court Justice Leondra Kruger is being widely mentioned. Kruger, appointed to California’s Supreme Court by Gov. Jerry Brown in 2014, is widely known in Washington legal circles, where she worked for the Bush and Obama administration Justice Departments. She has been popping up on short lists of prospective Supreme Court nominees for some time. Demand Justice, a progressive activist group, had her on its list in October 2019.
At Alliance for Justice, a coalition of more than 120 progressive organizations active in legal affairs, spokesman Zack Ford told The Bee “Justice Kruger is one of the individuals we expect would be on a prospective short list.” Wednesday, CNN, Washington Post, The Hill and other media outlets had her on their lists of prospective nominees. “She brings just a whole wealth of incredible experiences that will lend themselves well to anyone who steps into the shoes of a Supreme Court justiceship,” said Amanda Tyler, a law professor at the University of California, Berkeley, who served as a clerk to (Justice Ruth Bader) Ginsburg at the Supreme Court and who knows Kruger. “She’s someone who would obviously hit the ground running.”
Breyer, 83, is the court’s oldest justice, and media outlets reported Wednesday he plans to retire at the end of the current court term this summer.
Democrats want a nominee Breyer has come under pressure from many Democrats to step down while the party controls the Senate. Fifty-one votes are needed for confirmation, and Democrats now control 50 seats, with Vice President Kamala Harris breaking any ties.
Harris, who until last year was a U.S. senator from California and Senate Judiciary Committee member, has said for some time she’d like to see a Black woman on the court, and is close to Biden. Both of California’s senators, Dianne Feinstein and Alex Padilla, are members of the Senate Judiciary Committee, which will hold hearings on the nominee. The court now has a 6-3 conservative majority. President Donald Trump won confirmation of three nominees, the last being Justice Amy Coney Barrett. The 49-year-old former appellate judge succeeded the liberal Ginsburg, who died four months before Trump left office. Sam Erman, a professor at the University of Southern California Gould School of Law, said that as the conservative supermajority is still relatively new, a more-liberal woman of color taking up Breyer’s stead could aid in cases like the one over affirmative action, which the Supreme Court agreed to hear earlier this week. “That seems immediately like a place where a more liberal justice would have something interesting to say, and being a woman of color would potentially give you something even more interesting to say there,” Erman said.
Who is Leondra Kruger? Kruger is seen as having several plusses. She’s 45. At Justice, she served as acting Solicitor General, arguing 12 cases before the Supreme Court. She received the Justice’s Award for Exceptional Service, the Department’s highest award for employee performance. “She was notable for being incredibly clear and fair minded. She could talk to all the justices,” said Erman, who watched Kruger argue some of those cases while he was a clerk at the Supreme Court. “She always struck me as super convincing,” Erman added. “And that’s not so hard to do in writing — it’s not easy. But to be able to have the right thing on the tip of your tongue both suggested someone who thought in terms of trying to get it right and someone who was extraordinarily prepared each time she came in.” A Los Angeles native, she got her bachelor’s degree from Harvard College, where she was elected to Phi Beta Kappa, and her law degree from Yale Law School.
She was a law clerk for Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit, and for Associate Supreme Court Justice John Paul Stevens. Working against Kruger, though, is that she’s not served on a federal court. One of those on the short lists is Judge Ketanji Brown Jackson, who Biden last year named to the U.S. Court of Appeals for the District of Columbia. That court has often served as a launchpad for Supreme Court justices. Only Justice Elena Kagan did not serve on an appellate court before coming to the Supreme Court. Jackson, 51, also was a judge on the D.C. federal district court, and she was a clerk for Breyer. Tyler, the Berkeley law professor, said that there were key overlaps between the California Supreme Court and federal one that would make the transition seamless for Kruger. “She has to look for ways to build bridges to get the court to move in a direction she wants it to go. She has to pick her battles and decide when and how to dissent, for example,” she said. “All of these are the same things that U.S. Supreme Court Justices do every day.”
Erman, of Gould Law, noted that the California Supreme Court similarly sits on a large number of potential cases, which would help Kruger prioritize ones to hear on a national level. He added that California could be seen as a “training ground for justice.” “There’s this idea sometimes of, ‘California is the future of America,’ right? That it’s always like a little ahead of the demographic trends,” he said. “California has really interesting legal issues.” It is widely expected that Biden will select a Black woman to the bench, which he vowed to do during a March 2020 presidential debate on the campaign trail. If he does, the nominee would be the first Black woman to serve on the highest court. Tyler recalled multiple times sharing a picture of the 1954 Supreme Court which decided Brown v. Board of Education, the legal precedent that ruled racial segregation in schools was unconstitutional, with fourth-grade students while teaching. The court was all white men at the time. The students’ response is always usually, “That doesn’t look like America.”
“There’s something really important — both in terms of the appearance of justice and the exercise of justice — to having a Supreme Court that looks like America,” she said. “And so an appointment of a Black woman would go a great distance for helping us get there.”