Supreme Court Associate Justice Stephen Breyer.Photo: Andrew Harnik/AP/Shutterstock
Now that Justice Stephen Breyer has officially announcedhe will retire, allowing President Joe Biden to appoint his first Supreme Court nominee and keep apromise to name a Black woman, what happens next?
The process of replacing a Supreme Court justice began many months ago. White House Press Secretary Jen Psaki told reporters Thursday that Biden began reviewing bios of potential nominees during the 2020 campaign and “he’s been reviewing bios as president, since last year.”
“It’s my intention to announce my decision before the end of February,” the president said Thursday, adding that his expectation is for the Democratic-led Senate to “move promptly” in confirming his nominee.
When the Republicans controlled the Senate in the final few months of President Donald Trump’s presidency, it took them only 38 days from the day Justice Ruth Bader Ginsburg died on Sept. 18, 2020, until Oct. 26 to confirm her replacement, Justice Amy Coney Barrett, who was sworn in the next day.
That speedy pace of confirmation drew outcry from the Democratic minority, who said it contradicted precedent. But the example may have been instructive.
How Will Biden Decide Who to Pick?
In addition to vowing to keep his promise to nominate a Black woman to the Supreme Court, Biden explained how he and his administration will go about vetting potential nominees.
“Our process is going to be rigorous. I’m going to select a nominee worth of Justice Breyer’s legacy of excellent and decency,” the president said Thursday. “I will nominate someone with extraordinary qualifications, character, experience and integrity.”
Supreme Court justices.Erin Schaff-Pool/Getty
Biden maintained that he would enlist opinions of Republicans as well as Democrats. “I’m going to invite senators from both parties to offer their ideas and points of view,” he said after pointing out that the U.S. Constitution directs a president with the “advice and consent” of the Senate.
“I’ll also consult with leading scholars and lawyers,” he continued. “I’m also fortunate to have advising me in this selection process Vice PresidentKamala Harris. She’s an exceptional lawyer, former attorney general of the state of California, a former member of the Senate Judiciary Committee.”
Psaki has said the vice president’s role will be “central” and told reporters Biden’s Chief of Staff Ron Klain and White House Counsel Dana Remus have been involved in consulting with the president and preparing reports on potential nominees and will also play a role the process of picking someone.
Biden pledged to “listen carefully to all the advice I’m given” and to “study the records and former cases carefully.”
He will also meet with candidates, he said Thursday.
Kevin Lamarque/Getty; S. Todd Rogers/AP; Chip Somodevilla/Getty
Who Needs to Dust Off Her Resume?
There could certainly be some surprises, but three names have emerged as early front-runners.
Judge Jackson, 51, was formerly a judge in the District Court in D.C. and she clerked for the departing Justice Breyer for a term that began in 1999. Born in Washington but raised in Miami, she graduated from Harvard College and Harvard Law School.
California Supreme Court Associate Justice Leondra R. Kruger is familiar to the high court. In addition to serving as a law clerk for former Justice John Paul Stevens and presenting arguments before the court on behalf of the federal government during the Obama administration as a deputy solicitor general, the Los Angeles native is a graduate of Yale Law School just like four of the current justices.
Childs, 55, graduated from the University of South Carolina’s law school — a public rather than a private school — which Clyburn pointed to as an asset.
“One of the things we have to be very, very careful of as Democrats is being painted with that elitist brush,” thecongressman saidlast summer, referring to Childs' background and education. “When people talk to diversity they are always looking at race and ethnicity — I look beyond that to diversity of experience.”
How Will Republicans Respond to Biden’s Nominee?
Some commentators on the right have raised concerns over Biden’s decision to nominate a Black woman, suggesting that it limits his options and that the best candidate should be put forward without considering his or her race or gender.
Sen. McConnell has already offered a glimpse into his thinking when it comes to Biden’s nominee.
“The American people elected a Senate that is evenly split at 50-50. To the degree that President Biden received a mandate, it was to govern from the middle, steward our institutions, and unite America,” he said in a statement Thursday. “The President must not outsource this important decision to the radical left. The American people deserve a nominee with demonstrated reverence for the written text of our laws and our Constitution.”
Speaking to reporters, McConnell — who stonewalled PresidentBarack Obama’s ability to fill a vacancy at the end of his term — also said he willgive the nominee a “fair look.”
Sen. Mitch McConnell.Stefani Reynolds/Bloomberg via Getty
Though Republicans have been able to successfully stop parts of Biden’s proposed agenda from becoming law, they won’t have access to a crucial tool: themost-discussed filibuster.
The senate rule effectively creates a 60-vote threshold to pass legislation, rather than a simple majority. Republicans themselves are partly responsible for removing the use of the filibuster for Supreme Court nominees. They changed the rule to confirm Supreme Court Justice Neil M. Gorsuch, a Trump nominee, in 2017.
Attempts to carve out another exemption to the rule — this time for voting rights legislation — failed earlier this month, thanks in part to Democratic Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona who joined Republicans in opposing a change in rules around the use of the filibuster.
With a 50-50 Senate, Democrats need everyone on board, though some Republicans — like those who already voted to confirm Judge Jackson last year — may also greenlight Biden’s pick.
Will a New Justice Reshape the Court?
A new justice will certainly make her mark on the Supreme Court and, depending on her age and how long she serves, her influence could last decades.
But Biden is expected to replace liberal-leaning Breyer with another liberal, so his choice won’t tip the scales to the left.
Six conservative-leaning justices — half of which are Trump appointees — currently have a firm majority on the court.
Though anything could happen (Justices Antonin Scalia and Ruth Bader Ginsburg both died while serving, which created vacancies), court watchers don’t see any of the six following Breyer, 83, into retirement any time soon. The oldest, Justice Clarence Thomas, is 73 and noticeably more active than he’s been in the past.
source: people.com
