As speculation abounds about the prospective retirement of Supreme Court Justice Stephen Breyer, accompanied by implorations from some quarters that he do so soon, a pair of Black women jurists from Minnesota might be poised to take his place.
In the final Democratic presidential debate, right before COVID-19 descended a year ago, candidate Joe Biden promised that, if elected, his first nomination for a vacancy on that court would be a Black woman jurist, the first of her kind on that bench. Now that he has been elected, he must make good on the pledge, appealing to the group that was most loyal to him in the election, getting nearly all of their record-turnout votes.
Biden’s promise was the first time a candidate of his party has ever made such a specific preview of any prospective High Court appointee. However, Republicans have been using Supreme Court campaign promises for years. A fairly successful strategic election gesture that has eluded their opposition, the tactic has a distinct Minnesota flavor.
In 1968, one of Richard Nixon’s major promises in his successful campaign, narrowly defeating Minnesota’s Hubert Humphrey, was to appoint “law and order” judges to the High Court and other federal benches. His pledge materialized into Warren Burger, the St. Paul-raised jurist who replaced Earl Warren as chief justice, serving in that position for 17 years and leading the court away from some of its liberal-leaning rulings in criminal law matters during the turbulent 1960s. He was later joined by another St. Paul-bred Nixon appointee, Harry Blackmun, who started out with similar tendencies but strayed from them, frequently joining the liberal camp in both civil and criminal law matters later in his 24 years on the bench.
In 1980, Ronald Reagan proclaimed that his first appointee would be a woman, which turned out to be Sandra Day O’Connor, the court’s first female member.
Then, in 2016, Donald Trump outdid these campaign gestures, identifying by name 25 specific sitting jurists whom he would consider for the top court. The list, composed of favorites of the conservative Federalist Society, included a Minnesotan, David Stras, a state Supreme Court justice at that time. As president, Trump made good on his pledge. His three Supreme Court appointees — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — have had the Federalist Society’s blessing, and their rulings have almost uniformly reflected fidelity to its agenda, with some rare deviations.
The push for the 82-year-old Breyer, a stalwart member of the court’s shrinking three-member liberal wing, to step down comes from fear that Republicans could regain their former majority in the Senate, the body that must approve federal judicial nominees by majority vote, if a single one of the current 50 Democrats departs or the GOP manages to win back the Senate next year.
Those urging Breyer, the oldest High Court jurist, to step down now, or when the current High Court ends this summer, are eager to avert the possibility that prospective GOP dominance in the Senate could scuttle a liberal nominee proposed by President Biden or even lead to an impasse ala the Republican’s refusal to even consider President Obama’s nomination in 2016 of Merrick Garland (who has now resurfaced as the attorney general).
Breyer and his camp have been mum on his intentions, and no signals have indicated he intends to follow that path. But, if he does, his seat will be up for grabs by a qualified Black female jurist promised by Biden.
If so, the president may not have to look beyond Minnesota to fulfill his campaign pledge. A pair of African American jurists here may be waiting in the wings for a vacancy on the High Court: U.S. District Court Judge Wilhelmina Wright, a former state trial and appellate court jurist, and Minnesota Supreme Court Justice Natalie Hudson.
The two have comparable credentials and overlapping careers. Both had stints handling complex civil matters with large private law firms; served in the public sector including prosecutorial positions, Wright at the federal level with the Department of Justice and Hudson with the state Attorney General’s office and as St. Paul city attorney; served together on the Minnesota Court of Appeals, a decade for Wright, 13 years for Hudson; and been on the state Supreme Court, Wright for years before appointment to the federal trial bench by President Obama in 2016, and Wright since 2015, where she currently sits.
Wright would bring a federal judicial background to the High Court. But she would be an anomaly in one respect: Although she has had substantial state appellate experience, all nine current members of the court were elevated directly from federal appellate positions. High Court jurists rarely have been elevated directly from trial courts — none in recent history.
Although appointed to the state Supreme Court and federal bench by Democrats, some of her notable rulings would fit comfortably with the current conservative majority on the High Court, which has erected barriers limiting access to judicial forums in various cases.
She barred a lawsuit in 2018 on standing grounds challenging a state law requirement of using a predominance of Minnesota-based ingredients in wine in this state in Alexis Bailly v. Vineyard, Inc. v. Harrington. But that decision was overturned last year by the Eighth Circuit Court of Appeals.
In another high-profile decision last year, she struck down on First Amendment grounds parallel ordinances in Minneapolis and St. Paul requiring residential landlords to provide voter registration data to their tenants in Minnesota Voters Alliance v. City of St. Paul. While praising the measures as having a “laudable goal,” she deemed them as impermissible forms of “compelled speech” violative of the First Amendment, a doctrine with appeal to the conservative wing of the High Court.
Justice Hudson’s prospective ascension from the state appellate judiciary also would be unusual, but not unprecedented. The last one to trod that path was Justice O’Connor, who was placed there from a spot on the Arizona court of appeals. A generation before her, President Dwight Eisenhower elevated liberal Democrat William Brennan from the New Jersey Supreme Court to the High Court.
She would appeal to a portion of Biden’s base with an inclination to support claimants in civil litigation, a predilection reflected, for instance, in her ruling for the state Supreme Court two years ago in McGuire v. Bowlin, allowing a defamation lawsuit to proceed by a Woodbury high school girls basketball coach, reversing lower court rulings dismissing the case on First Amendment grounds.
If either of the two women is appointed to the Supreme Court, the jurist will join three former Minnesota men who have served on that tribunal. They all hailed from St. Paul. The first was Pierce Butler, a former St. Paul City Attorney. He was followed more than 30 years later by President Nixon’s appointment of the Minnesota Twins, Republicans Burger and his childhood pal Blackmun, who collectively spanned a 25-year period from 1969, when Burger became chief justice, to 1994, upon the retirement of Blackmun.
As an asterisk to Minnesota judicial history, another High Court jurist came from Minnesota, Justice William Douglas. The liberal lion, who authored the most decisions in the court’s history, had a record 35-plus-year tenure on the bench. He was born in tiny Maine Township near Fergus Falls in Otter Tail County in the west central part of the state, but his family and he left there when he was an infant and ultimately relocated to Washington state.
The prospect for either of the two Black women jurists from Minnesota joining the Supreme Court is enhanced by the prominent role played by Minnesota Sen. Amy Klobuchar on the Senate Judiciary Committee, the entry level for any federal judicial nominee.
Unless Breyer retires, it is unlikely that any other slots will be vacant for a while. But a Breyer departure would give Biden the chance to fulfill his campaign pledge. It also would provide a distinct and an opportune occasion to consider filling it with a Black woman from Minnesota.
Marshall H. Tanick is a constitutional law attorney with the Twin Cities law firm of Meyer Njus Tanick.
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