Justice Stephen Breyer’s impending retirement gives President Joe Biden his first, and possibly his best, chance to fill a seat on the Supreme Court. It’s clear he wants to make it count.
Biden last week reaffirmed his campaign promise to nominate a Black woman to the high court and said he intends to announce his selection by the end of February.
He and Senate Majority Leader Chuck Schumer, D-N.Y., have both vowed to move quickly to replace Breyer, likely aiming for a new justice to be appointed well before the court’s summer recess.
The White House said Monday that Biden will begin consultations this week with potential nominees to succeed the 83-year-old justice. Some of the likely top contenders include Judge Ketanji Brown Jackson, Judge J. Michelle Childs and California Supreme Court Justice Leondra Kruger.
If they nail the timing and execution, Democrats could score a major political win — appointing the first Black woman to the nation’s highest court, while protecting a liberal seat — that pays dividends a few months later in the midterm elections.
They need all the help they can get. A sitting president’s party typically loses seats in the midterms, and Biden’s sagging approval ratings have boosted Republicans’ confidence that they will at least regain the House, if not the Senate as well.
Due to Republicans tossing the 60-vote filibuster rule for Supreme Court nominees during the Trump administration, the 50-50 split in the Senate gives Democrats enough power to confirm Biden’s eventual pick without any GOP votes. Vice President Kamala Harris would be the tiebreaking vote.
But some are already raising concerns that a split within the party could imperil Biden’s Supreme Court agenda — just as it did weeks earlier when centrist Democratic Sens. Joe Manchin, of West Virginia, and Kyrsten Sinema, of Arizona, joined all Republicans in rejecting a change to the filibuster, effectively blocking legislation on voting rights.
A loaded schedule
The confirmation fight will also kick off during a hectic time for Congress, as lawmakers return to Capitol Hill this week to address issues including the threat of a Russian invasion of Ukraine and a fast-approaching deadline to pass an omnibus spending bill.
The Democrat-led Senate Judiciary Committee will hold public hearings with Biden’s nominee that will likely span multiple days. If that panel approves the nomination, it goes to the full Senate for a final vote.
While it is not required by the Constitution, the nominee also typically converses with individual senators, including members who are not on the judiciary committee.
It takes weeks to even reach the hearing stage after the president submits his or her pick to the Senate. For modern nominees it has taken 41 days on average, according to the Congressional Research Service.
Since 1789, there have been 164 Supreme Court nominations. The overwhelming majority have been white men.
The White House has suggested that Biden is considering a wide crop of potential nominees, though no official list has been released. More than a dozen names of Black female judges have already cycled through the political rumor mill as likely short-listers for the Supreme Court.
Among the buzziest would-be contenders is Judge Ketanji Brown Jackson, whom the Senate confirmed last year to the U.S. Court of Appeals for the D.C. Circuit in a 53-44 vote. All 50 Democrats supported Brown’s nomination, along with Republicans Susan Collins, of Maine, Lindsey Graham, of South Carolina, and Alaska’s Lisa Murkowski.
Childs, 55, is a favorite of Rep. James Clyburn, the high-ranking Democrat who is credited with reviving Biden’s presidential candidacy at a crucial moment in the 2020 primary race.
Graham heaped praise on Childs over the weekend, saying he “can’t think of a better person” for Biden to nominate.
Also in the mix is California Supreme Court Justice Leondra Kruger, 45, who previously served as principal deputy U.S. solicitor general in then-President Barack Obama’s administration. In that role, Kruger argued 12 cases before the Supreme Court.
Many Republicans have already adopted an aggressive stance, preemptively warning that Biden’s yet-to-be-decided nominee will be a radical leftist. With control of the Supreme Court becoming an all-important campaign issue, Republicans look to be using the nomination process to animate their base.
“I predict that Chuck Schumer and whoever is running the White House will force all Democrats to obey and walk the plank in support of a radical liberal with extremist views,” said Republican Sen. Rick Scott, of Florida.
“The president must not outsource this important decision to the radical left,” Senate Minority Leader Mitch McConnell, R-Ky., said last week.
Critics have also seized on Biden’s commitment to nominate a Black woman to the court, with some arguing that the pool of qualified candidates should not be limited by race and gender.
Sen. Susan Collins, R-Maine, for instance, told ABC News on Sunday: “I believe that diversity benefits the Supreme Court. But the way that the president has handled this nomination has been clumsy at best.”
In response, Biden’s defenders have noted that Republican President Ronald Reagan in 1980 had committed to nominating a woman to the high court and Republican President Donald Trump had vowed to pick a woman to succeed the late Justice Ruth Bader Ginsburg.
For Democrats, time is of the essence. If they lose control of the upper chamber, they fear, there will be a repeat of 2016, when the GOP-led Senate successfully blocked Obama’s nominee by refusing to conduct hearings. That nominee, Merrick Garland, is now Biden’s attorney general.
That fear was the impetus for a progressive-led push for Breyer to step down from the bench soon after Biden beat Trump in the 2020 election. Democrats had already been stung in late 2020, when the liberal Justice Ruth Bader Ginsburg died and was replaced by Trump nominee Amy Coney Barrett just days before Election Day.
Ginsburg had reportedly waited to retire because she expected Democrat Hillary Clinton would be elected in 2016. Instead, her successor’s appointment cemented a 6-3 conservative majority that could endure for years.
In interviews over the past year, Breyer appeared to chafe at these calls for his ouster, while noting that he did not “intend to die on the court.”
But Thursday he confirmed that he planned to step down when the court’s term comes to an end, which usually happens around late June or early July, “assuming that by then my successor has been nominated and confirmed.”
In a speech at the White House following Biden’s remarks on his retirement, Breyer addressed younger generations who may have grown cynical about the U.S. legal system.
“It’s us, but it’s you. It’s that next generation, and the one after that — my grandchildren and their children. They’ll determine whether the experiment still works,” he said.
“And, of course, I am an optimist. And I’m pretty sure it will.”