Soon-to-be open Merrick Garland judicial seat a springboard to the Supreme Court

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, even if they only serve for a short time, as was the case with Justice Amy Coney Barrett, who served for about two years on the 7th Circuit Court of Appeals before President Donald Trump nominated her to the Supreme Court.

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. Atop that list was Ketanji Brown Jackson, a judge on the United States District Court for the District of Columbia.

The Biden team is reportedly considering Jackson, who is black and a woman, two demographics Biden promised while on the campaign trail to propel into judicial vacancies. The Obama team considered Jackson in 2016 for the Supreme Court seat that it ultimately tried to pass to Garland.

On the whole, Biden has remained silent on his judicial strategy, a stark contrast to his predecessor. After Democrats secured their narrow Senate majority in early January, Michael Gerhardt, a law professor at the University of North Carolina, told the Washington Examiner that Biden’s team wants to play it safe with judicial nominations.

“He likely will not make any announcement before Garland is confirmed in order to avoid any risk that the nominations together might be more difficult to get through than they would have been if he had done one at a time,” he said.

Biden entered his term with 50 judicial vacancies, after Judge Victoria Roberts, who was nominated to the Eastern Michigan District Court by then-President Bill Clinton, said in a letter submitted to Biden hours after his inauguration that she intends to retire in late February.