Biden will get a chance to fill a Supreme Court vacancy. Here's what to expect
As his domestic agenda is stalled in Congress, tensions are elevated with Russia encroaching on Ukraine and the pandemic is still raging, President Biden will get the chance to deliver on one of his campaign promises — naming the first Black woman to the U.S. Supreme Court.
Supreme Court Justice Stephen Breyer is expected to announce his retirement at the White House on Thursday, administration and court sources told NPR.
The 83-year-old justice was nominated by President Bill Clinton in 1994 and has played a key role on the court in cases preserving the Affordable Care Act and upholding a woman's right to access abortion services.
But as the oldest member on the court, many lawmakers openly called for Breyer to step down soon after Biden took office, especially with the possibility that Democrats could lose their slim Senate majority in the upcoming midterm elections and miss a window for a Democratic president to get a nominee confirmed to the nation's highest court.
Democrats have wanted to avoid a repeat of history. Justice Ruth Bader Ginsburg, who battled cancer during her last years on the court, declined to step down during President Barack Obama's second term in office. When she died just months before the 2020 election, President Donald Trump was able to replace her with a conservative jurist — Amy Coney Barrett — solidifying a conservative majority on the court.
Many congressional Democrats welcomed the news of Breyer's impending retirement, while praising his service on the court. He is expected to remain on the court through the end of term in June.
A chance for a historic nominee
Biden pledged during the 2020 campaign that he would tap a Black woman to be his nominee to the Supreme Court, if he got the chance. The White House for now is saying the president plans to keep his promise, but has offered few other details.
"The president has stated and reiterated his commitment to nominating a Black woman to the Supreme Court, and certainly stands by that," White House press secretary Jen Psaki said Wednesday.
.@JoeBiden says that if he was president, he’d look forward “to making sure there’s a black woman on the Supreme Court.” #DemDebate https://t.co/66AoqMK8pw pic.twitter.com/hcwNoXs3sp— CBS News (@CBSNews) February 26, 2020
There are a couple of dozen Black female judges currently serving on the federal bench and a handful of those names are expected to be on Biden's shortlist. But two names have emerged as front-runners.
Federal Judge Ketanji Brown Jackson, who was also on Obama's shortlist for the court in 2016, is regularly mentioned by Democrats. California Supreme Court Justice Leondra Kruger — who was the assistant, and then deputy solicitor general in both Democratic and Republican administrations before she was nominated to California's highest court — is also considered highly qualified for the post. Both women are younger — Jackson is 51 and Kruger is 45 — giving either the opportunity, if chosen and confirmed, to serve for decades.
Sen. Patty Murray, D-Wash., the highest-ranking female Democratic leader, released a statement within minutes of the news of Breyer's retirement, pointing to Biden's pledge.
"The Court should reflect the diversity of our country, and it is unacceptable that we have never in our nation's history had a Black woman sit on the Supreme Court of the United States — I want to change that," Murray said.
Similar statements supporting the nomination of a Black woman came in from leaders of the Congressional Black Caucus, civil rights leaders and other liberal advocates.
Timetable for Senate confirmation
Senate Majority Leader Chuck Schumer is aiming to process Biden's nominee swiftly — within roughly a month, according to a source familiar with his thinking. This is the same timeframe Republicans followed to move Barrett's nomination through the Senate in the fall of 2020.
"In the Senate, we want to be deliberate. We want to move quickly. We want to get this done as soon as possible," Schumer said.
This development also gives Senate Democrats some breathing room to change the subject from recent failed efforts to advance voting rights bills and social spending legislation. The Supreme Court confirmation process will move to the front burner, and likely move priorities like negotiating a scaled-back version of the "Build Back Better" policy bill to the back burner. Democrats will want to secure a political win for the president before turning back to trying to get the major climate and child care bill through ahead of the midterm elections.
Once Biden announces his selection, the White House will formally submit the paperwork to the Senate. The Senate Judiciary Committee requires nominees to fill out a questionnaire detailing their background, education and judicial record. The FBI performs a background check and briefs members of the Senate committee on its findings.
In Judge Jackson's case, she has gone through a similar process recently. She was confirmed to her current position by a 53-47 vote, last June, with three Republicans — Sen. Lindsey Graham, R-S.C., Sen. Susan Collins, R-Maine, and Sen. Lisa Murkowski, R-Alaska, voting with all Democrats.
The nominee usually begins one-on-one meetings with senators of both parties soon after they are nominated. The White House appoints an experienced political operative — dubbed a "sherpa" — to help the nominee maneuver through the process. Ron Klain, the current White House chief of staff, helped lead the process for Ginsburg after she was nominated by Clinton.
The Senate Judiciary Committee will schedule confirmation hearings. These include sessions with the nominee and usually a panel of outside experts picked by both the majority and minority on the panel.
Sen. Dick Durbin, D-Ill., the chair of the panel, has not set a timetable yet but released a statement promising to move "the President's nominee expeditiously through the Committee."
In addition to the confirmation hearings, which typically get wall-to-wall live television, radio and digital coverage, outside groups on the right and left of the political spectrum usually spend millions of dollars in ads and advocacy efforts.
Senate vote expected to follow a partisan split
Breyer was confirmed 87-9 in 1994, at a time when most Senate Republicans supported the president's nominee. But that tradition of agreeing that a president has a right to his pick for these lifetime appointments has disappeared. Supreme Court nominations in recent years have become a battle royale for both parties, and votes confirming high court nominees have broken down largely along party lines.
The decision by then-Senate Majority Leader Mitch McConnell to block Obama's nominee in 2016 to fill the seat of Antonin Scalia, the conservative justice who died, set in motion a new war over how the chamber handles these highly charged court debates. McConnell maintained that since Scalia's death came so close to a presidential election the process should wait until after people voted on the next president. However, McConnell did not stick to that position when Ginsburg died months before the 2020 election. The then-Republican-controlled Senate moved quickly to confirm Barrett in a party line vote weeks before voters went to the polls.
In the current 50-50 Senate, Vice President Harris could serve as the tie-breaking vote. Centrists Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, who have opposed key planks of the president's legislative agenda, have backed his judicial nominees. There is a chance that moderate Republicans like Collins or Murkowski could support a Biden nominee, if the individual does not encounter any controversies through the process.
Political impact ahead of 2022 midterms
Democrats were already gearing up to make the Supreme Court an issue in the November midterms. The court is considering cases on abortion, guns and affirmative action, with decisions expected to bring the court's power into focus months or even weeks before the election. Some Democratic Party leaders believe highlighting the potential for the conservative court to overturn the landmark Roe v. Wade decision legalizing abortion could rally supporters to turn out to back the party's candidates.
Sen. Gary Peters, D-Mich., who chairs the Senate Democrats' campaign arm, said Wednesday in a written statement, "This vacancy reinforces the stakes of this year's election and why we must defend and expand our Democratic Senate majority with the power to confirm Supreme Court justices. Protecting Roe v. Wade, coverage for pre-existing conditions, workers' rights and so many other issues central to the lives of every American are all on the line. And in 2022, voters will make their voices heard by standing with Senate Democrats."
Republicans are also reminding voters that the court should be a factor for voters this fall. Graham — who played a crucial role on the judiciary panel during the confirmations of current Justices Neil Gorsuch, Brett Kavanaugh and Barrett, the three justices nominated by Trump — said, "Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court."
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