While his domestic agenda in Congress is stalled, tensions are rising with Russia’s encroaching upon Ukraine, and the pandemic continues to rage, President Biden will get the chance to fulfill one of his campaign promises, namely, naming the first Black woman to serve on the U.S. Supreme Court.
According to court sources and administration, Stephen Breyer, Supreme Court Justice , is expected to announce his retirement on Thursday at the White House.
The 83-year old justice was appointed by President Bill Clinton in 1994. She has been a key member of the court in cases that preserved the Affordable Care Act and upheld a woman’s rights to access abortion services.
However, Breyer is the oldest member of the court and many legislators have called for Breyer’s resignationsoon. This was especially in light of the possibility that Democrats might lose their slim Senate majority and close the window for a Democratic presidential nominee to be confirmed to the nation’s highest court.
Democrats want to avoid repeating history. Justice Ruth Bader Ginsburg, a former justice of the court who was diagnosed with cancer in her final years, refused to resign during President Barack Obama’s second term. Just months before the 2020 election, she passed away. President Donald Trump was able to replace her by Amy Coney Barrett, a conservative judge — thereby establishing a conservative majority at the court.
Many Democrats in Congress welcomed Breyer’s retirement news and praised his service to the court. He will likely remain on the court until June’s end.
Chance to nominate a historical nominee
Biden promised during the 2020 campaign that he would nominate a Black woman for the Supreme Court. While the White House has stated that Biden intends to keep his promise, it did not provide any other details.
Jen Psaki, White House press secretary, stated Wednesday that the president had reiterated his commitment to nominating Black women to the Supreme Court.
A few dozen Black female judges are currently on the federal bench, and Biden is expected to include a few of them on his shortlist. Two names are the front-runners.
Democrats frequently mention Federal Judge Ketanji Jackson Brown Jackson, who was also on Obama’s 2016 shortlist. California Supreme Court Justice Leondra Kruger, who served as the assistant and deputy solicitor general under both Democratic and Republican administrations prior to her nomination to California’s highest court, is also highly qualified for the position. Both women are younger than Jackson, who is 51, and Kruger, 45. This gives either of them the chance to serve for decades, if they are confirmed.
Senator Patty Murray (D-Wash.), the highest-ranking female Democratic leader, issued a statement shortly after Breyer’s retirement announcement, pointing out Biden’s promise.
Murray stated, “The Court should reflect the diversity of the country. It is unacceptable that we have never had a Black woman serve on the Supreme Court of the United States. I want that to change.”
Leaders of the Congressional Black Caucus and civil rights leaders, among others, made similar statements in support of the nomination of a Black women.
Timeline for Senate confirmation
According to a source, Chuck Schumer, Senate Majority Leader, is trying to expedite the process of Biden’s nomination — in about a month. This is the exact same time frame that Republicans used to move Barrett’s nomination through Congress in the fall 2020.
“In the Senate we want to be deliberate. We want to move fast. Schumer stated that we want to move quickly.
This gives Senate Democrats more time to move on from failed attempts to pass voting rights legislation and social spending legislation. The Supreme Court confirmation process is expected to move quickly and move priorities such as negotiating a reduced version of “Build Back Better”, a policy bill that aims to improve the quality of building back better, to the back burner. Democrats will seek to win a political victory for President Obama before returning to trying to pass the major climate and child-care bills in time for the midterm elections.
The White House will officially submit the paperwork to Senate once Biden has announced his selection. Nominees must complete a questionnaire about their education, background, and judicial records. The FBI conducts background checks and informs the Senate committee about its findings.
Judge Jackson has been through a similar process in her case. Last June, she was confirmed to her current post by a 53–47 vote with three Republicans, Sen. Lindsey Graham (R-S.C.), Sen. Susan Collins (R-Maine), and Sen. Lisa Murkowski (R-Alaska). All Democrats were present.
The nominee meets with senators from both parties in one-on-one meetings shortly after being nominated. To help the nominee navigate the process, the White House nominates a highly experienced political operative (known as a “sherpa”) to serve as her point man. Ron Klain is the White House chief of staff and helped Ginsburg navigate the process after Clinton nominated her.
Confirmation hearings will be scheduled by the Senate Judiciary Committee. These hearings include meetings with the nominee, and usually a panel made up of outside experts chosen by the majority and the minority.
Senator Dick Durbin (D-Ill.), the panel’s chair, hasn’t yet set a timeline, but issued a statement promising that he would move the President’s nominee quickly through the Committee.
Outside groups from the left and right of the political spectrum spend millions of dollars on ads and advocacy.
Expect a Senate vote to follow a partisan split
Breyer was confirmed 87-9 in 1994 at a time that most Senate Republicans supported the president’s nominee. However, the tradition of agreeing that a president can choose his nominee for lifetime appointments has been lost. In recent years, Supreme Court nominations have been a battle royale between both parties. Votes confirming nominees for the high court have been largely split along party lines.
Mitch McConnell, then-Senate Majority leader, blocked Obama’s nomination in 2016 for the seat of Antonin Scolia, the conservative justice who passed away. This set off a new conflict over how the chamber handles these high-stakes court debates. McConnell maintained that Scalia’s passing was so close to a presidential election, the process should be halted until people vote on the next president. McConnell changed his mind when Ginsburg died several 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.
Vice president Harris could be the tie-breaking vote in the 50-50 Senate. Centrist Sens. The Centrist Sens. Joe Manchin from West Virginia and Kyrsten Silena from Arizona, both of whom have opposed the president’s legislative agendas, have supported his nominees for judicial office. If the nominee is not subject to any controversy, there is a possibility that Collins and Murkowski, moderate Republicans could support him.
The 2022 midterms will have a significant political impact
Already, Democrats were preparing to make the Supreme Court a major issue during the November midterms. The court is currently considering cases on guns, abortion, and affirmative action. Decisions are expected to put the court’s power in focus months, or even weeks, before the election. Some leaders of the Democratic Party believe that highlighting the possibility for the conservative court’s overturning the landmark Roe-v. Wade decision legalizing the abortion could encourage supporters to vote for the party’s candidates.
Senator Gary Peters (D-Mich.), who heads the Senate Democrats’ campaign arm said Wednesday that “this vacancy reinforces this year’s electoral stakes and why we must defend our Democratic Senate majority with power to confirm Supreme Court justices. The line is being drawn to protect Roe V. Wade, coverage of pre-existing conditions, workers rights, and many other important issues that affect every American’s daily life. Voters will be able to make their voices heard in 2022 by supporting Senate Democrats.
Republicans remind voters that the court should be an important factor in their election this fall. Graham, who was a key member of the judiciary panel that confirmed current Justices Brett Kavanaugh, Neil Gorsuch and Barrett, three Trump nominees, said, “Elections can have consequences. This is especially evident when it comes down to filling vacancies on The Supreme Court.”
