President Joe Biden confirmed a campaign promise that he would be nominating a Black woman to the Supreme Court.
Getty ImagesPresident Joe Biden could announce his nominee to replace retiring Associate Supreme Court Justice Stephen G. Breyer as early as this week. In January, Biden said he would share his pick by the end of February -- and reiterated his promise to put forward a Black woman for the post.
Since then, three women have emerged as the main contenders, according to numerous media reports.
Here's what we know about Breyer's potential replacements, how the confirmation process works, and the cases the new justice might be weighing in on.
For more on the federal government, here's what we know about the current state of voting rights, mask mandates and regulation of tech giants.
What we know about the three judges Biden may be considering for the Supreme Court
President Biden hasn't divulged any potential nominees yet, saying only that he still plans to select a Black woman and that his choice will be "someone of extraordinary qualifications, character, experience and integrity."
But according to press reports, three current judges have emerged as top contenders.
J. Michelle Childs (L) with House Majority Whip Rep. James Clyburn (D-SC) before her confirmation hearing for U.S. District for the District of South Carolina.
Chip Somodevilla/Getty ImagesBiden already signaled his support for Judge J. Michelle Childs when he nominated her to the Court of Appeals for the District of Columbia Circuit in January.
Childs, 55, currently serves on the US district court in Columbia, South Carolina, and was previously a state court trial judge on the South Carolina Circuit Court.
A graduate of the University of South Carolina School of Law, she worked as commissioner of South Carolina's Workers' Compensation Commission from 2002 to 2006 and in the labor division of the South Carolina Department of Labor, Licensing and Regulation from 2000 to 2002.
She is considered an expert in labor law and worked on the employment law volume of the American Law Institute's Restatements of the Law, an influential collection of treatises that define the principles in specific areas of law.
Rep. Jim Clyburn, a South Carolina Democrat and Biden ally, has pressed for Jackson to be appointed to the Supreme Court, in part because, unlike most of the other current justices, she doesn't have an Ivy League background.
Gov. Jerry Brown, a Democrat, named Leondra Kruger to the California State Supreme Court in 2014.
Office of the Governor of California"One of the things we have to be very, very careful of as Democrats is being painted with that elitist brush," Clyburn, the highest-ranking African-American in Congress, told The New York Times last year. "When people talk to diversity they are always looking at race and ethnicity -- I look beyond that to diversity of experience."
Another name being floated is California Supreme Court Justice Leondra Kruger, who has been on the state's high court for seven years.
Previously, Kruger, 45, worked in the Justice Department's Office of Legal Counsel and in the Office of the Solicitor General, where she argued 12 cases before the US Supreme Court.
A graduate of Harvard College and Yale Law School, Kruger clerked for Supreme Court Justice John Paul Stevens before entering private practice in Washington, DC, and teaching at the University of Chicago Law School.
If appointed, Kruger would not only be the first Black woman on the Supreme Court but the fifth justice of Jewish heritage to hold the seat Breyer occupies. With his retirement, Elena Kagan would be the only Jewish justice on the bench.
Judge Ketanji Brown Jackson clerked for Justice Breyer from 1999 to 2000.
Tom Williams-Pool/GettyOne of Biden's first picks for the federal bench, Judge Ketanji Brown Jackson is considered by many to be at the top of his list of SCOTUS nominees.
Last March, Biden nominated Jackson, 51, to replace Attorney General Merrick Garland in the US Court of Appeals for the District of Columbia Circuit, considered one of the most important federal courts in the nation and often a pipeline to the Supreme Court.
She was confirmed by the Senate three months later, with Republicans Lisa Murkowski, Susan Collins and Lindsey Graham joining all 50 Senate Democrats in voting to support her appointment.
After receiving both her bachelor's and law degrees at Harvard, Jackson clerked for Breyer from 1999 to 2000. She previously served as a US district judge in the District of Columbia and on the US Sentencing Commission.
How are Supreme Court justices appointed to the bench?
When a sitting justice retires or dies, the president has the power to nominate their choice to fill the vacancy. This can happen during a judicial term or during a recess.
The Senate will then hold confirmation hearings to determine the candidate's qualifications and vote on whether or to confirm the nominee. Only 51 "yes" votes out of 100, known as a simple majority, are needed to be confirmed. With the Senate split 50-50, even if all Senate Republicans voted against the nominee, Vice President Kamala Harris has the authority to break a tie in her role as President of the Senate and would presumably vote to approve Biden's nominee.
Doug Jones, a former Democratic senator from Alabama, has been tapped to guide the eventual nominee during their confirmation process, senior administration officials told The New York Times.
Since the 1970s, the average length of time between a president nominating a potential justice and their final Senate vote has been about 68 days, according to the Congressional Research Service.
If a nominee is approved, they may begin executing their duties after taking two oaths: The Constitutional oath, in which they affirm they are bound "to support this Constitution" and that "no religious test shall ever be required as a qualification to any office," and the judicial oath, in which they swear to administer justice impartially and faithfully, "without respect to persons, and do equal right to the poor and to the rich."
The Constitution provides that judges serve during "good behavior," which has generally been interpreted as a lifetime appointment.
How are Republicans responding to the potential nominees?
Sen. Lindsey Graham (R-SC) has come out in support of Childs as Justice Breyer's replacement, telling CBS' Face the Nation he couldn't think of a better candidate than the district court judge from his home state.
"She has wide support in our state. She's considered to be a fair-minded, highly gifted jurist," Graham said, calling Childs "one of the most decent people I've ever met."
But other Republicans have criticized Biden's promise to nominate a Black woman.
Sen. Ted Cruz called President Biden's promise to nominate a Black woman to the Supreme Court "offensive."
Screenshot by Stephen Shankland/CNETOn Sunday, Sen. Ted Cruz of Texas told Fox News that Biden's vow to nominate a Black woman to the Supreme Court was a case of racial discrimination.
"Democrats today believe in racial discrimination," Cruz told Fox News anchor Bill Hemmer. "They're committed to it as a political proposition. I think it is wrong to stand up and say, 'We're going to discriminate.' What the president said is that only African American women are eligible for this slot. That 94 percent of Americans are ineligible."
In October 1980, then-presidential candidate Ronald Reagan, a Republican, promised to nominate a woman to the Supreme Court if elected, ultimately leading to Sandra Day O'Connor becoming the first female justice on the bench.
Devins says he doesn't expect a repeat of Merrick Garland's 2016 nomination to the Supreme Court, when McConnell, then-Senate Majority Leader, refused to hold confirmation hearings -- ostensibly because it was an election year.
"I don't think they can drag it out for three years," Devins said. "I think it's going to be a warm fuzzy process, even if most Republicans oppose the nominee. There's little benefit to having a fight when they know there's no prospect of winning."
In his Fox News appearance, Cruz said the GOP would not drag the nominee "into the gutter" during their confirmation hearings.
That doesn't mean it will be a smooth or speedy process: Collins has told reporters she felt the confirmation timetable for the last Supreme Court appointee, Amy Coney Barrett, "was too compressed."
"This time there is no need for any rush," Collins said. "We can take our time, have hearings, go through the process –which is a very important one. It is a lifetime appointment, after all.
What could be on the Supreme Court docket for Breyer's replacement?
So long as conservative justices continue to hold a supermajority, Breyer's successor isn't expected to swing the court further to the left. But the new justice would soon join in ruling on several hot-button issues that have been making their way through the judiciary.
Earlier this month, the Supreme Court agreed to examine a case addressing admissions practices at Harvard College and the University of North Carolina that could have a major impact on affirmative action in higher education.
The same day, the court also agreed to hear an appeal challenging the constitutionality of the Federal Trade Commission, which is charged with enforcement of antitrust laws and promoting consumer protection.
Justice Breyer's successor could weigh in on cases covering issues ranging from affirmative action to religious freedom.
CNET/Marguerite ReardonArguments in both cases likely won't be heard until the next term, which starts in October, by which time Breyer's replacement would presumably be installed.
The Supreme Court will address gun control in its current term, ending in June, when it rules on a challenge to a New York state law requiring individuals to show "proper cause" for applying for a concealed carry permit.
Neal Devins, a law professor at William & Mary College in Virginia, said it's very possible the court will revisit the issue in the coming years.
"The New York gun case is not the end of SCOTUS' input on Second Amendment rights," Devins said. "The scope of the Second Amendment will be figured out in subsequent cases."
The current court is also slated to render a decision in Dobbs v. Jackson Women's Health Organization, a challenge to a 2018 Mississippi law prohibiting abortion after 15 weeks.
Devins similarly believes that, depending on the ruling, "the abortion issue could definitely return to the court."
He predicts the court will also confront issues involving religious liberty, LGBTQ rights, evolving technology and the separation of powers among the three branches of government.
How many justices are there on the Supreme Court?
The number of Supreme Court justices has fluctuated in our country's history -- the high court was first established with six justices but saw a low of five under president John Adams and a high of ten when Abraham Lincoln was president.
Since the Judiciary Act of 1869, the number has been set at nine. But in the intervening 159 years, efforts have been made to raise that number: In 1937, President Franklin Roosevelt pushed for legislation to increase the number of Supreme Court justices to 15. (His efforts were unsuccessful.)
In April 2021, Biden issued an executive order creating a commission to review possible reforms to the U.S. Supreme Court, including expanding the number of justices in the court.
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