The NPR Politics Podcast - What To Know About Biden's Supreme Court Front-Runners

Episode Date: February 17, 2022

Ketanji Brown Jackson, Leondra Kruger, and Michelle Childs are all highly-qualified to serve on the Supreme Court. They are also young enough to serve for decades to come. Biden has said that he will announce his nominee by March 1, the day he is scheduled to give his first State of the Union address before Congress.This episode: White House correspondent Scott Detrow, national justice correspondent Carrie Johnson, and legal affairs correspondent Nina Totenberg.Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Find and support your local public radio station.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hi, this is Josh from State College, Pennsylvania, and I'm currently studying for what will hopefully be my third successful bar exam. This podcast was recorded at... It is 1-07 Eastern on Thursday, February 17th. Things might have changed by the time you hear this, but no interest in land is good unless it must vest, if at all, not later than 21 years after some life and being at the creation of the interest. Enjoy the show. Oh man, good luck. A few more of those and maybe you could be on the Supreme Court. What an overachiever. Good luck, man. Hey there, it's the NPR Politics Podcast. I'm Scott Detrow. I cover the White House.

I'm Carrie Johnson, National Justice Correspondent. And I'm Nina Totenberg. I cover the Supreme Court. And this crew of people could help you study for the bar exam, I guess. But instead, we're going to talk instead about the latest with the Supreme Court. President Biden, of course, has vowed to name his pick to fill an open spot on the court by the end of the month. He has said this nominee will be the first black woman ever nominated to the court. We know the list of serious contenders has narrowed, but right at this particular moment, this entire process is kind of playing out on the dark side of the moon, with the Biden White House being very determined to not give us any information about what's happening right now.

And that is despite failed attempts like mine at yesterday's press briefing. And I think the only other angle left on the interviews that you have not been asked is, will you tell us when the interviews are complete? Unlikely. I will tell you. The president will tell you when there's a nominee. Unlikely, but still, we do have things to talk about, and that's what we're going to do. So, Carrie, let's start with this, because I know you've been doing some reporting on Dana Remus, the White House counsel. The counsel's office has taken a lead role. Can you tell us what she and they are looking at right now as they go through the backgrounds of these contenders?

Yeah, Dana Remus and her team are leading the vetting. They're helping prepare and get ready for all the interviews. And then eventually, when there is a nominee, they'll be responsible for helping shepherd that person through the process, doing those kinds of brutal sessions called moot courts or murder boards, where they get asked lots of difficult questions. I talked with White House Chief of Staff Ron Klain about Remus and her role. Here's what he had to say. Well, Dana is the quarterback for this whole process. She's overseeing the process of selecting a nominee and then ultimately getting that nominee confirmed.

And as you know, Scott and Nina, there's a lot of work to do here. Yeah. A lot. So, Nina, there's the legal opinions, there's the rulings, there's the professional background, there's the personal background. But at a moment that might have happened already, it might be happening right now, not right this instant, because Joe Biden is in Ohio, right at this particular instant. But there is that interview between the finalists and the president. What are the types of things a president is asking and looking for in that setting?

You can't ask what are your views about abortion, about precedents of specific things, but you can ask questions about people's views on the law generally and what their concept of the Constitution is in terms of its interpretation, whether they believe themselves to be originalists in the sense that at least probably five or six members of the current court conceive themselves as being, and I would assume that they're not. They have a different interpretation. And so I'm not sure that the interviews have an enormous impact, frankly, but for getting a sense of this human being before you. I mean, President Bush really liked John Roberts. He saw other very qualified people, and all of the women who have been mentioned for this job are clearly qualified in any classic

sense of the word. So the question is, does the president have a sense of this individual as somebody the president wants to put on the Supreme Court to do things and see things as the president sees them? So that's what's happening right now. Biden has said that he's going to name this nominee by the end of the month. He has a long track record of not meeting deadlines like that. But the State of the Union is March 1st,

which would be a high profile space to talk up this nominee. So maybe that deadline is more likely. In the meantime, though, let's spend some time talking about the three most likely contenders. Nina, you just published long profiles on all three of them. Let's start with the person who is viewed as the frontrunner, and that is Judge Katonji Brown Jackson. Nina, let's start with that. Why is Jackson viewed as the frontrunner? Well, partly because she was on President Obama's shortlist, too, but mainly because she's been through the confirmation process most recently. She's gone through an FBI background check, and she has actually had a confirmation hearing where Republicans on the committee knew that she was a good prospect for the Supreme Court,

and they grilled her accordingly. She managed to get the ranking Republican to vote for her, Lindsey Graham. And she got two other members of the Senate to vote for her. So I would say if there is a frontrunner just on those kinds of things, it would be Katonji Brown Jackson. But of course, as we'll discuss later, at least one of these candidates has a very powerful House member who is pushing for her very, very aggressively. So, Carrie, you have covered a lot of judges. You've spent a lot of time in courtrooms. What, if anything, about Jackson stands out to you when it comes to the way that she approaches this job, the way that she issues rulings?

I think she's brought a whole bunch of different experiences in her life to the bench. You know, she has several relatives who either served in the military or worked in key jobs in law enforcement over the years. Katonji Brown Jackson herself was a public defender working on appeals for indigent people in criminal cases for a while. And she sat on the U.S. Sentencing Commission, which has a huge role in advising courts and judges on proper punishments, particularly for people convicted of drug crimes. And so Katonji Brown-Jackson is able to talk about lots of those things at a high level of sophistication. And she's also able to bring some of those experiences, could be able to bring some of those experiences to the Supreme Court, where we know the justices are brilliant, we know that, but a lot of them have not spent much time in criminal courtrooms or deliberating over the liberty of individuals. And that makes a difference, I think, in the real world.

Yeah. All right, we're going to take a quick break. When we come back, we're going to talk about the other two contenders, Leandra Kruger and Michelle Childs. And we're back. And the next name on the list, Leandra Kruger, has somewhat of an interesting twist, especially when you think about the recent history of Supreme Court nominee. She is a state judge right now. She's on the California State Supreme Court, not the federal bench. Nina, you noted in your story that she'd be the first nominee since Souter to predominantly come from a state court system. How much does that matter? Well, you know, there are a lot of state court cases that get to the Supreme Court. And so it's certainly significant. She's also on the California Supreme Court, California being just a huge state, which is such a mirror in many ways of the country as a whole in terms of the legal questions that come to it. In addition to that, of course, she was for six years, an advocate for the United States in the Solicitor General's office,

rising to the level of principal deputy. And she has a background that she was the editor of the Yale Law Review. And, you know, this is probably on paper the perfect resume in some ways, because she knows both federal and state law. Interestingly enough, the Biden administration thought so highly of Leandra Kruger that they twice, twice asked her to be the Solicitor General, and she said no, to stay in California. I wonder if that's going to play any role in the decision they make now, they, the Biden administration, about the Supreme Court vacancy.

So let's move on to the last candidate, and that is Judge J. Michelle Child. She's a federal judge in South Carolina. And I'll say this, the really interesting thing about her candidacy is that on one hand, the White House, you know, routinely tries to make the point that President Biden will not be swayed by outside lobbying. He is focused on his pick. He is making his pick. Outside lobbying plays no role in this decision. And Clyburn has been saying Childs is a great judge. She needs to be seriously considered. You know, she was already about to be nominated for the D.C. appeals court, which would be a big upgrade. But aside from that really interesting, aggressive lobbying from Clyburn,

which extends to like meeting with members of the Judiciary Committee, what about Child's background and time on the bench stands out? Well, you know, she's been a federal trial judge for 11 years. Before that, she was a state judge for four years. Before that, she was the first black female law partner in her firm. Some liberal groups have suggested that she was anti-labor, but really when you examine it, that idea doesn't hold up very well. She has, in terms of being a trial judge, I would say a fairly conventional and good record, but there are things about her that make you understand the perils that could be encountered in a confirmation hearing, although there is

no scent of that at the moment. So she, in her speeches, has been very much pro-affirmative action, buying into the idea of systemic racism, said things that probably would come back to, she'd have to defend them. You can just sort of almost hear it. And even there are some things that are also unspoken about her that shouldn't play any role in this, but if she's nominated, she would be the seventh Catholic on the court. That would mean seven out of nine justices are Catholic, when 20% of this country is Catholic. And if we're talking about religious and demographic diversity, racial, religious, demographic diversity, that doesn't seem all that diverse. Yeah, let me interject here as a person who went to state schools and did not brush up against the

Ivy League. It's true, as Clyburn says, she doesn't represent the Ivy League as so many of the justices do. And that would be a little bit different and maybe send a message to members of the public. I don't know. Well, it's February 17th. Biden continues to insist by this time two weeks from now, we will know who this nominee is and we will do a lot more podcasts on her, especially as she begins to make her way through that Senate confirmation process. That is it for today, though. I'm Scott Detrow. I cover the White House.

I'm Carrie Johnson, national justice correspondent. And I'm Nita Totenberg. I cover the Supreme Court. Thank you for listening to the NPR Politics Podcast.