Takeaway: It's early in the process but the leading candidates are probably Justice Leondra Kruger from California and Judge Ketanji Brown Jackson.

Editor's Note: Below is a complimentary research note written by Legal Policy Analyst Paul Glenchur. To access more of our Legal Policy research please email sales@hedgeye.com.

What's Next For Supreme Court After Justice Breyer's Decision?  - 14098259219 81c74b5ee3 b

News reports indicate Justice Stephen Breyer will retire from the Supreme Court at the end of the current term this summer.  President Biden has previously hinted that he would appoint an African-American woman to fill a vacancy on the Court.

The leading candidates would likely be Justice Leondra Kruger of the California Supreme Court and Judge Ketanji Brown Jackson who was recently confirmed to replace Judge Merrick Garland on the DC Circuit Court of Appeals when Judge Garland joined the Administration as Attorney General. 

Judge Brown Jackson served as a law clerk to Justice Breyer.  Justice Kruger, a former Editor-in-Chief of the Yale Law Journal, served as a law clerk to Justice John Paul Stevens of the Supreme Court. 

She also has extensive Justice Department experience in the Solicitor General's Office and the Office of Legal Counsel (the DOJ legal advisor to the Administration).

Of course, other potential candidates for the nomination could surface in the weeks ahead.

Replacing Justice Breyer would not shift the political balance of the Court and the Court would maintain a 6-3 conservative majority for the following term even with the confirmation of a Biden-nominated replacement.  

There has been speculation that President Biden could nominate Vice President Kamala Harris to the Court.  The prospect raises a host of inside-baseball political considerations -- including which Democrat should be elevated in case President Biden is not a candidate in 2024 -- but, as Hedgeye Potomac's J.T. Taylor suggests, such a move is unlikely. 

First, it could trigger a nomination fight over VP Harris that could damage the Administration.  Second, if VP Harris is confirmed, it would create a temporary vacancy for a senate tie-breaker until a new Vice President is confirmed by majority votes of both the House and Senate (pursuant to the 25th Amendment of the Constitution). 

Finally, the process of selecting a replacement for VP Harris would probably trigger an intense and divisive battle between progressives and moderates.

With a 6-3 majority continuing to favor the conservative wing of the Court, we would expect the Administration to nominate an individual with the potential to cultivate narrow majorities in contentious cases. 

The records of potential candidates have likely been studied in some detail in anticipation of a possible vacancy but additional review and input will continue before final interviews with President Biden and the relevant top officials.

In addition, with a midterm election a few months away, the Administration needs to avoid the risk of a drawn-out confirmation battle that could be held up by Senate moderates. 

The political pressure on Justice Breyer to resign is largely driven by concerns the Republicans could take control of the Senate next year.  Accordingly, the confirmation of his replacement must be completed before midterm election timing concerns intensify.

At this point, we put our chips on Justice Kruger, but the critical selection process is just getting underway.