Supreme Court: Did a federal court just reveal Biden’s nominee?


The United States Court of Appeals for the District of Columbia Circuit deviated from its usual procedure by issuing an opinion on a Thursday, breaking from its usual schedule of Tuesday and Friday publication days. Notably, Jackson — who interviewed Biden for the Supreme Court nomination — had a majority in the 2-1 decision case.

Some legal experts took the release as a sign that Jackson could be the nominee and the announcement could happen as soon as Friday, particularly because a similar storyline unfolded with current judge Brett Kavanaugh.

“Part of the reason this is ringing alarm bells is that we saw a similar scene unfold in July 2018 with then-DC Circuit Judge Brett Kavanaugh,” said analyst Steve Vladeck. the CNN Supreme Court and a professor at the University of Texas School of Law. “The DC Circuit handed down a 2-1 ruling on a Monday — a day it doesn’t typically hand out rulings — in a case in which Kavanaugh had a majority. If the case had been handed down after his nomination was announced hours later, he would presumably have challenged, and the panel would have split 1-1.”

“It’s not hard to imagine that the same math explains why that 2-1 ruling with Judge Jackson in the majority came out today – another day when the court doesn’t typically make non-urgent rulings.”

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A DC Circuit Court official told CNN the case in question was an untried matter in an emergency case. The court always has the ability to issue opinions at any time, the official said, and has done so many times over the years, particularly when it comes to a matter of urgency.

The case is a dispute between a Connecticut power plant and the Federal Energy Regulatory Commission. The DC Circuit had intervened earlier this month to stop an agency order that would have prevented the plant from selling power to consumers. Thursday’s decision was the opinion — written by Circuit Judge Neomi Rao and joined by Jackson — explaining why the court issued this emergency order.

The DC Circuit official also confirmed that Supreme Court nominees “generally” stop participating in cases before the Court of Appeal after their High Court appointments are announced.

“Sometimes the appointed judge provides us with a statement to read in response to media requests,” the official said, adding, “We don’t know anything at this point.”

Another contender for the seat, California Supreme Court Justice Leondra Kruger, was spotted in California on Thursday morning as a car accompanied by state police was seen leaving the South Carolina home of a shortlisted colleague, District Court Judge J. Michelle Childs. Plastic bags covered the car window, so it was unclear if Childs was in the car.

Biden has made a decision on his first nominee, people familiar with the selection said Thursday night, with his historic selection of the first black woman to serve on the nation’s highest court due to be revealed as soon as Friday.

A ceremony on Friday would mark two years to the day when Biden made his initial promise to choose the first African-American female judge in a 2020 primary debate in South Carolina.

Biden makes decision on Supreme Court nominee, with announcement as soon as Friday
Jackson was elevated to the DC Circuit last year by Biden, after serving nearly a decade on DC’s federal district court. She has long been considered the favorite to replace retired judge Stephen Breyer, for whom she served as clerk. His experience working as a DC public defender has been touted by his supporters — as Biden has sought to bench more public defenders.

This story has been updated with additional reports.

CNN’s Betsy Klein and Andrew Millman contributed to this report.


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