Justice Stephen Breyer’s retirement announcement last week has offered President Joe Biden a chance to make his first Supreme Court nomination.
Biden is reportedly considering a number of candidates, and the extreme arguments made by one of those candidates were reportedly enough to leave liberal Justice Elena Kagan rattled.
According to Fox News, that candidate is California State Supreme Court Justice Leondra Kruger, who once represented the Obama administration in a high-profile religious liberty case.
In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the high court was asked whether religious organizations are obliged to follow anti-discrimination statutes when hiring spiritual leaders.
Fox News states Kruger contended that they did, and expressed opposition to a legal doctrine known as the “ministerial exception,” which holds that the government may not regulate how religious organizations select their leaders.
The Supreme Court rejected her arguments, with Chief Justice John Roberts writing at the time, “We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.”
Carrie Severino, president of the conservative legal group Judicial Crisis Network, sees Kruger’s track record as being a serious cause for concern.
“The position that Kruger staked out as a litigant in Hosanna-Tabor against the ministerial exception — one that even Justice Kagan described as ‘amazing’ during oral argument — suggests that she could be hostile to religious liberty if she were appointed,” Severino told Fox News Digital.
“Given that Hosanna-Tabor was unanimously decided, such a position would shift the Court’s liberal wing even further to the left, which of course is the desire of the liberal dark money groups who spent $1.5 billion in 2020 to help elect President Biden and Senate Democrats,” she continued.
Evidence that the president is interested in changing the Supreme Court’s ideological composition could be interpreted in comments he made Tuesday after meeting with Senate Judiciary Committee Chairman Dick Durbin (D-IL).
Fox News quoted Biden as saying that “the Constitution is always evolving slightly in terms of additional rights, or curtailing rights.”
“And there are several schools of thought, in terms of judicial philosophy,” the president added.