by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Should the Senate confirm Merrick Garland as attorney general in the coming weeks, the judicial vacancy he leaves could set the stage for the next Supreme Court fight.
Garland, whom President Biden tapped to lead the Justice Department following a Democratic Senate sweep in Georgia, currently serves on the powerful U.S. Court of Appeals for the D.C. Circuit. His departure will give Biden an opportunity to nominate a replacement to the court that has produced three sitting Supreme Court justices: Chief Justice John Roberts and Justices Clarence Thomas and Brett Kavanaugh. The late Justices Antonin Scalia and Ruth Bader Ginsburg also sat on the court.
The person whom Biden picks will likely be in the running if the president has the opportunity to choose a replacement for the aging Justice Stephen Breyer, said Geoffrey Stone, a law professor at the University of Chicago who served in the Obama administration.
“A judge on the D.C. Circuit is statistically more likely to wind up on the Supreme Court than a judge on another court in the land,” he said.
Still, he added, that doesn’t guarantee a spot on the Supreme Court for whomever Biden picks to replace Garland. Most appeals court judges do not make it to the Supreme Court. But nearly all Supreme Court justices come from appeals courts. …
… For that reason, judges who land on the D.C. Circuit often gain the reputation for being on the “unofficial farm team for the Supreme Court,” said Justin Driver, a law professor at Yale University who clerked for Garland.
That perception of nearness to the Supreme Court has driven judicial reform activists to push for Biden to place their preferred candidate on the court. Just hours after the election, liberal court activists delivered a list of names to Biden.