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May 5, 2020

Will Joe Biden release a SCOTUS short-list and will it excite criminal justice reformers?

As revealed in this way back link, it was mid May 2016 when then-candidate "Donald J. Trump released the much-anticipated list of people he would consider as potential replacements for Justice Scalia at the United States Supreme Court."  Notably, neither Neil Gorsuch nor Brett Kavanaugh appeared on the first Trump SCOTUS short-list, but these names were added later and now they are fixed as part of the Trump Supreme Court legacy.

This recent CBS article, headlined "Democrats push Joe Biden to release Supreme Court short list and run on future court battles," highlights "calls for Biden to copy the playbook of then-candidate Donald Trump, who in May 2016 released a list of 11 people he would pick from to nominate to take the late Justice Antonin Scalia's seat."  Here are some excerpts:

Several lawyers and activists told CBS News that Biden, a former public defender, should run on protecting the popular liberal legacy of Ruth Bader Ginsburg.  Progressives warn if Biden is not elected, the Supreme Court's current 5-4 conservative tilt could balloon into a potential 7-2 majority if Ginsburg, 87, and  Stephen Breyer, 81, choose to retire or face greater health troubles....

Ginsburg is an enormously popular figure in the Democratic Party, a truth that has been evident throughout the Democratic primary process — her portrait is frequently seen beaming on colorful t-shirts and tote bags. Some suggest that by tying his campaign to protecting her legacy, Biden would also highlight his previous pledge to nominate the first black woman justice if he is elected.

Demand Justice, a progressive court reform group, already has a list of several women who they view as qualified, including NAACP Legal Defense Fund Director Sherrilyn Ifill and California Supreme Court Justice Leondra Kruger.

Other names floated to CBS News as potential court picks for Biden included federal court judges Kentanji Brown Jackson and Tanya Chutkan, both Obama appointees to the federal bench.

"Clinton and [Tim] Kaine really needed a third person on that ticket to really get out individuals who weren't that excited by them as a team, and I think Joe Biden kind of has the same issue going forward," Melissa Murray, law professor at New York University and host of the Supreme Court-focused podcast "Strict Scrutiny," told CBS News. "Imagine how much more energizing it would be to also pick someone [for SCOTUS] who would excite parts of the Democratic base."...

Asked about the likelihood of releasing a list of potential appointees, Biden's campaign did not directly respond and highlighted his history with the Supreme Court.

Long-time readers may recall, as detailed in this post from Feb 2016, that I was an advocate for Judge Ketanji Brown Jackson to be nominated by Prez Obama for the 2016 opening, in part because of her history as a public defender and her time as a member of the US Sentencing Commission.  I would continue to be excited to see her on any SCOTUS short list, and there are a number of women-of-color on the Demand Justice short-list that ought also excite folks eager to have more Justices who are more skeptical of the modern criminal justice status quo.

For those of us who follow closely the work of courts, I think it can be quite informative and important to get a view of what kinds of individuals a potential President would expect to appoint to our highest court.  I sincerely hope that Joe Biden does come out with a SCOTUS short-list before too long and that it includes people who seem likely to help produce more and better criminal justice rulings from the Supreme Court.

May 5, 2020 at 01:47 PM | Permalink

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