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With Justice Breyer retiring, Biden will have a Supreme Court pick

RACHEL MARTIN, HOST:

Today, President Biden is expected to meet with Supreme Court Justice Stephen Breyer. In that meeting, Breyer is expected to formally announce that he is retiring from the nation's high court after serving nearly three decades. President Biden will now get his first chance to appoint a new justice. Christopher Kang is with the advocacy group Demand Justice. He has served in the White House as deputy counsel to then-President Obama, overseeing the vetting and selection of more than 200 judicial nominees. So he's got a pretty good sense of what this process is going to look like. And he joins me now. Christopher, thanks for being here.

CHRISTOPHER KANG: Morning. Thanks so much for having me.

MARTIN: I want to talk about process in a minute. But let's talk about people first. President Biden has said that if given the chance, which he now has, that he would nominate the first Black woman to the court. Who's likely to get this job?

KANG: So I think that there are a few contenders in the job. The leading contender is Judge Ketanji Brown Jackson of the District of Columbia Circuit Court. So it's often considered the second most important court in the country. And not only does she bring almost a decade of experience as a federal judge, but she also really embodies President Biden's commitment to professional diversity. Her career includes time as a federal public defender, representing people who couldn't afford a lawyer who have been accused of committing crimes, as well as being a sentencing commissioner. So she will have great experience on the criminal side, which has been lacking. The Supreme Court has not had a lawyer who's represented defendants in criminal cases since Thurgood Marshall retired almost three decades ago.

MARTIN: Another name at the top of the list - Leondra Kruger, right?

KANG: Yes. She is a Supreme Court justice in California. She also served in the Obama administration. She's also one of the leading contenders because there are very few Black women who have risen to the level that she has in our nation's courts.

MARTIN: I do want to draw out an interesting detail about Ketanji Brown Jackson. She is related by marriage to former GOP Speaker of the House Paul Ryan?

KANG: She is. I think it's, like, her brother's - her husband's brother is married to somebody in Paul Ryan's family. I think it was very exciting when Ketanji Brown Jackson was nominated to the district court in the District of Columbia that Paul Ryan actually came and introduced her and spoke glowingly of her. And I think it really speaks to the bipartisan support she would have if she were nominated.

MARTIN: I mean, that's going to be the rub, right? I mean, it's 50-50 in the Senate. It's a heavily partisan moment. How does that affect the nomination process going forward here?

KANG: Well, right now, Democrats could confirm a Supreme Court justice with just 50 votes in the Senate, plus Vice President Harris breaking the tie. But I think that we just saw Judge Jackson was confirmed by this same Senate less than a year ago to her current position with three Republican votes. And I think that anybody who the president is looking at - a highly qualified, historic nominee - is going to bring that kind of bipartisan support so it won't be just a 50-50 vote at the end of the day.

MARTIN: NPR is reporting, along with other media outlets, that the Senate majority leader, Chuck Schumer, wants to move fast on this. He is citing the quick turnaround for Justice Amy Coney Barrett's confirmation. That took roughly a month - right? - from when she was nominated. How likely is that kind of speed in this moment?

KANG: I think it should be the expectation. And Republicans set this precedent of confirming a Supreme Court nomination 30 days after the president put the name forward. And I think that that should be the expectation this time around as well.

MARTIN: I wonder if you could reflect for a moment on Justice Stephen Breyer. What strikes you about his legacy? What does the court lose with his departure?

KANG: Well, he has a great legacy. In particular, he's written these powerful decisions with respect to protecting the access to abortion. And I think especially this term, when this Republican supermajority on the Supreme Court seems poised to overturn the landmark decision of Roe v. Wade, protecting that right to abortion, it really crystallizes the importance of Justice Breyer's voice and what he's brought to the court. He served on it for almost three decades. He's seen a lot of change. He's been on the right side of history of so many important cases. But I also think that his decision to step aside now and ensure that President Biden can nominate a successor while Democrats control the Senate is an important decision as well.

MARTIN: As you look towards a confirmation hearing, what are the issues that you can imagine flaring up?

KANG: Well, I think one of - regrettably, one of the things that any nominee that the president puts forward, being the first Black woman, is going to face a lot of bad-faith attacks. I think we've seen it in particular with other nominees of color and women of color whom the president has nominated to judgeships and other positions. And I think that's just something that we're going to have to be ready for. The actual stakes here are a little bit lower than they have been in the past because Republicans, again, will maintain this supermajority hold on the court. It'll still be six justices out of nine appointed by a Republican president. So I think a lot of the attacks will be, regrettably, bad faith...

MARTIN: What does that mean?

KANG: Well, I think that we've seen women of color in particular be subjected to more aggressive line of hearing, a double standard of questions and expectations of knowledge of the law that they don't ask of other candidates. And I think that we just have to be ready for that sort of hostility to come from the other side.

MARTIN: Christopher Kang of Demand Justice, we appreciate your perspective on this this morning. Thank you so much for being here.

KANG: Sure. Thanks for having me. Transcript provided by NPR, Copyright NPR.