Stimulus Check Up | Apr 8, 2022 | 0
The departure of the most senior liberal justice on the bench sets up a seismic confirmation battle
White House press secretary Jen Psaki told reporters that President Biden “certainly stands by” his campaign trail promise to nominate a Black woman on the highest court in the land.
During a primary debate in February 2020, Biden pledged to appoint a Black woman to the Supreme Court if given the opportunity, calling it “long overdue.”
Psaki told reporters Wednesday the White House would “not have additional details” on news of Supreme Court Justice Stephen Breyer’s retirement until Breyer made the announcement himself.
“Well, I’ve commented on this previously, the President has stated and reiterated his commitment to nominating Black woman to the Supreme Court and certainly stands by that. For today, again, I’m just not going to be able to say anything about any specifics, until of course, Justice Breyer makes any announcement, should he decide to make an announcement,” Psaki said.
In a follow up, Psaki declined to offer any details on what planning the White House had prepared in the event of a SCOTUS vacancy.
Earlier Wednesday, the President declined to weigh in on the news of Breyer’s retirement from the court.
“Every justice has the right to decide what he or she is going to do, and announce that on their own,” Biden said. “There’s been no announcement from Justice Breyer. Let him make whatever statement he is going to make, and I’ll be happy to talk about it later.”
Appointed in 1994 by President Bill Clinton, Supreme Court Justice Stephen Breyer has sought to focus the law on how it could work for the average citizen. He was no firebrand and was quick to say that the Supreme Court couldn’t solve all of society’s problems. He often stressed that the court shouldn’t be seen as part of the political branches but recognized that certain opinions could be unpopular.
“It is wrong to think of the court as another political institution,” Breyer told an audience at Harvard Law School in 2021. “It is doubly wrong to think of its members as junior league politicians.”
“If the public sees judges as ‘politicians in robes,'” he warned, “its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a ‘check’ on the other branches.”
The news comes as the court’s conservative majority has flexed its muscles in a blockbuster term. The justices have already heard one case that could overturn Roe v. Wade and another that could expand gun rights.
Recently, Breyer joined his liberal colleagues, Justice Sonia Sotomayor and Elena Kagan, in a bitter dissent when the conservative majority blocked Biden’s vaccine mandate for large employers. Breyer also dissented last year when the court allowed a Texas six-week abortion ban to remain in effect.
The law is the strictest in the nation and bars abortion before most women even know they are pregnant.
Here’s a look at the current makeup of the court:
Supreme Court Justice Stephen Breyer choosing to announce his retirement in January, six months before he’ll actually be leaving, “is giving the President lots of time to name a successor and to avoid getting caught up in the partisan hostilities,” CNN Supreme Court analyst Joan Biskupic said.
Biskupic noted that Breyer had “struggled” with the decision to retire, but that he knew “it was time.”
“He resisted the pressure last term, as you know, to leave because everybody was thinking about what happened with Ruth Bader Ginsburg who resisted pressure when a Democrat was in the White House and President Obama had a Democratic Senate then what happened is that she died and then her successor, Amy Coney Barrett, has transformed this court,” Biskupic explained on CNN.
“So Justice Breyer didn’t want that to happen although he really likes his job and wanted to stay as long as he could. By choosing January to reveal this, he’s giving the White House plenty of time and the over thing you should know is he’s conditioning it on the replacement of a successor because he doesn’t want the court to be left with eight justices,” she said.
Biskupic continued, “So I know that he has been weighing this for a long time. It was just a matter of when he was going to just accept the fact that he’s had a long, important tenure. Twenty eight years on the Supreme Court. He’s 83. He doesn’t want to leave anything more to chance. Especially since the senate hangs by one vote for a Democratic majority.”
Through his long career as a member of US Congress, President Biden presided over many Supreme Court confirmations when he served as chairman of the Judiciary Committee.
Here’s a list:
September 1987 — Robert Bork (failed)
December 1987 — Anthony Kennedy
September 1990 — David Souter
September/October 1991 — Clarence Thomas
July 1993 — Ruth Bader Ginsberg
July 1994 — Stephen Breyer
President Biden vowed during the campaign trail that if he were to get a vacancy he would put a Black woman on the high court.
Well before Stephen Breyer’s retirement plans became public, a short list of potential nominees had been circulating Washington and officials in the White House Counsel’s office built files on various candidates in anticipation of a potential vacancy. Now, those efforts will ramp up significantly and the President will likely hold one-on-one meetings before announcing his pick.
While the President nor the White House have announced a nominee, here are potential picks who have been on observers’ short list:
- DC Circuit Judge Ketanji Brown Jackson: Biden has already elevated Judge Ketanji Brown Jackson once, appointing her last year to the US Court of Appeals for the District of Columbia, which is considered the second-most powerful federal court in the country. Previously, the 51-year-old judge served on the federal district court in DC. Because of that appellate appointment, she’s already been through a vetting process that included an interview with the President himself. Fittingly, she clerked for Breyer and holds degrees from Harvard and Harvard Law School. She also served as an assistant federal public defender, making her a prime example of the Biden White House’s focus on appointing judges with backgrounds that are outside the typical prosecutor and Big Law box.
- California Supreme Court Justice Leondra Kruger: Kruger, now 45, was the youngest person to be appointed to the California Supreme Court when then-Gov. Jerry Brown nominated her in 2014. Kruger is intimately familiar with the Supreme Court having worked as a clerk for the late Justice John Paul Stevens and served as acting deputy solicitor general in the Obama administration. While in the Solicitor General’s office, she argued 12 cases in front of the Supreme Court representing the government. At the Justice Department, she also earned the Attorney General’s Award for Exceptional Service, the department’s highest award for employee performance, in 2013 and 2014.
- South Carolina US District Court Judge J. Michelle Childs: Childs, a judge on South Carolina’s federal court, is said to have a major booster in House Majority Whip James Clyburn, a Biden ally who helped deliver South Carolina for the eventual nominee in the 2020 Democratic primary. Just last month, Biden nominated Childs to the US Court of Appeals for the District of Columbia Circuit, and the nomination remains pending.
Other names that have been floated:
- District Judge Wilhelmina “Mimi” Wright, a judge on Minnesota’s federal district court whose consideration would likely please Sen. Amy Klobuchar, the Minnesota Democrat who sits on the Judiciary Committee.
- Circuit Judge Eunice Lee, a former New York public defender whom Biden nominated to the Second Circuit on the recommendation of Senate Majority Leader Chuck Schumer.
- Circuit Judge Candace Jackson-Akiwumi, an alumna of Chicago’s public defender’s office whose appointment by Biden to the Seventh Circuit was cheered by Senate Judiciary Chair Dick Durbin of Illinois.
- Sherrilyn Ifill, a civil rights attorney who recently announced plans to step down from her role as President and Director-Counsel of the NAACP Legal Defense and Educational Fund.
Read more about the possible nominees here.
Senate Majority Leader Chuck Schumer is looking at a quick timeframe to confirm President Biden’s nominee to the Supreme Court — and he will follow a similar timeline that Republicans employed to confirm Amy Coney Barrett to the court in 2020, according to a source familiar with this thinking.
Senate sources also say that the Senate can act on the Biden nominee before Justice Stephen Breyer officially steps down from the court. Democrats expect to hold hearings and votes before Breyer officially steps aside at the end of his term.
A look back at the Barrett timeframe: Justice Ruth Bader Ginsburg died on Sept. 18, 2020, and Barrett was nominated by former President Trump on Sept. 26, 2020. She was confirmed Oct. 26, 2020 — just days before the presidential election, prompting Democratic anger. In 2016, Republicans blocked the nomination of now-US Attorney General Merrick Garland, saying it was too close to the election.
In what will be one of the most monumental endeavors of Joe Biden’s presidency, the retirement of Stephen Breyer sets the stage for an immensely important decision by the President.
Breyer’s seat may be the only one that Biden fills on the Supreme Court — and it may not be one he fills at all if Republicans retake the Senate before the President’s choice for a replacement is confirmed.
On the campaign trail, Biden vowed to put a Black woman on the high court, which would be a historic first. A short list of potential nominees had been circulating Washington well before Breyer’s retirement plans became public, and officials in the White House counsel’s office built files on various candidates in anticipation of a potential vacancy.
Now, those efforts will ramp up significantly and the President will likely hold one on one meetings before announcing his pick.
The White House is stacked with officials deeply familiar with the confirmation process, starting with Biden himself — who chaired the Senate Judiciary Committee — as well as White House chief of staff Ron Klain, who has experience both at the White House counsel’s office and working for the Senate Judiciary Committee.
Why this matters: With Democrats holding the narrowest of majorities in the upper chamber, Biden will have to choose someone who can safely get 50 votes in the Senate (Vice President Kamala Harris could provide the tie-breaking vote if the Senate is split on the nomination). In addition to the vote count, Biden also has to keep an eye on the calendar. Senate Republicans are likely to retake the chamber in this year’s midterms and have already signaled they would block a Biden nominee to the Supreme Court. It typically takes two to three months for a President to see his nominee confirmed by the Senate once he or she is named. The most recent justice, however, was confirmed in just a month and a half, as Senate Republicans rushed to get Justice Amy Coney Barrett approved before the 2020 election.
Given the disappointments that have been recently dealt to the progressives under the Biden administration — between the congressional demise of the President’s Build Back Better proposal and his failure to find a way forward on voting rights legislation — Biden’s choice for the Supreme Court gives him the opportunity to reinvigorate the Democratic base. If she is confirmed, Biden will secure a much-needed victory for his administration.
Read about Biden’s possible nominees here.
President Biden declined to weigh in on the news Supreme Court Justice Stephen Breyer plans to retire, instead deferring to Breyer, who plans to announce his retirement at the White House as early as tomorrow, sources say.
“Every justice has the right to decide what he or she is going to do, and announce that on their own,” Biden told reporters in the State Dining Room Wednesday. “There’s been no announcement from Justice Breyer — let him make whatever statement he is going to make, and I’ll be happy to talk about it later,” the President said.
Biden then returned to the program at today’s CEO Meeting at the White House, turning to Tom Linebarger, Chairman and Chief Executive Officer of Cummins, joking, “Do you want to go to the Supreme Court, Tom?”
“I’m going to defer on that one,” Linebarger responded, before starting his remarks.
Senate Judiciary Chair Sen. Dick Durbin promised to move President Biden’s Supreme Court nominee to replace retiring Justice Stephen Breyer “expeditiously” through the committee.
“I thank Justice Breyer for his decades serving the Court and the nation. He has been a trusted voice on the bench with a first-rate legal mind,” Durbin said in a statement.
“With this Supreme Court vacancy, President Biden has the opportunity to nominate someone who will bring diversity, experience, and an evenhanded approach to the administration of justice. I look forward to moving the President’s nominee expeditiously through the Committee.”
After Biden’s selection, there will be hearings in the committee. The confirmation process timeline varies, but it usually takes months.