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How Democrats Should Nominate a New Supreme Court Justice
With Justice Stephen Breyer’s announcement that he will retire from the Supreme Court this summer, President Biden has a chance to take the landmark step of putting the first Black woman on the court, while shaping the future of jurisprudence. Thanks to President Donald Trump and the former Senate majority leader Mitch McConnell, there is a new set of rules in place for Supreme Court nominations that all but guarantees Democrats will succeed.
Unless of course, we mess it up.
In 2009, when President Barack Obama nominated Judge Sonia Sotomayor to the court, our team shepherded the nominee through the halls of the Senate for courtesy calls with 89 senators, most of whom waited to announce their intended vote until the Judiciary Committee did its work in vetting and questioning her. Not until that process was complete could they take the measure of her fitness to serve on the court.
Those days are gone. Mr. Biden shouldn’t look to the process we followed in the Sotomayor nomination. Instead, he should look to the nomination and confirmation of Justice Amy Coney Barrett.
Over Mr. Trump’s term, Republicans distilled the Supreme Court nomination process to pure politics. Instead of spending weeks scrutinizing a nominee’s rulings and parsing legal intricacies for potential hearing questions, they simply rubber-stamped Mr. Trump’s picks. Even before Mr. Trump announced his nominee to succeed Justice Ruth Bader Ginsburg, the chairman of the Senate Judiciary Committee, Lindsey Graham, declared that he had enough votes to confirm any nominee in both the Judiciary Committee and on the Senate floor.
And within minutes of the president’s nomination of Judge Barrett, Republican senators began to declare their support for her. Thirty-eight days after Justice Ginsburg died, her successor was confirmed. The process exemplified one of the defining features of the modern Republican Party: its laser focus on the judiciary and its extraordinary discipline in filling seats when its members control the Senate — or blocking confirmations when they do not.
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While some Senate institutionalists may disagree with this new normal, we would be foolish not to understand it. Qualifications are critical and must be verified. But speed is also essential. Democrats should take a page from Mr. McConnell’s book and move as quickly as possible. Senators who stoke suspense over how they will vote only create fodder for the news media to focus on divisions among Democrats, rather than on the Republicans who are already laying the groundwork to oppose this historic pick. Although Justice Breyer won’t step down until June or July, Mr. Biden should narrow his list and announce his selection as soon as possible, and Senate Democrats should move quickly to confirm her.
In 2017, when Senator McConnell didn’t like Democrats filibustering President Trump’s first Supreme Court pick, for the same seat that he denied Merrick Garland, he blew up the 60-vote threshold so that nominees could be confirmed with just a simple majority. This was, of course, a tit-for-tat response to Senator Harry Reid’s changing those rules for lower-court nominees.
With Vice President Kamala Harris’ vote, Democrats now have the seats they need to confirm a new justice. Despite the new Senate rules being in their favor, Democrats need to eliminate all possible roadblocks. President Biden and Senator Chuck Schumer, the majority leader, have been extremely successful in holding Democrats together to approve a diverse set of judicial appointments, setting a record by confirming 42 in the president’s first year. That’s a sign that Democrats have a winning strategy for filling court seats.
So here’s my message to Democrats: Let’s not overthink this.
Shortly after Justice Breyer’s plans to retire were revealed on Wednesday, Mr. Schumer said Mr. Biden’s nominee would be considered “with all deliberate speed.” Mr. Biden said that he’d announce his nominee within a month, and from there, the White House suggested the nomination process could take several weeks. But given that the president is a former Senate Judiciary chairman and his chief of staff, Ron Klain, was a top aide on that panel, the Biden team likely has a short list and possibly a favorite already in mind.
Unquestionably, the women on that list are extremely qualified, but we also have no margin for error. So the nominee would ideally be someone with a legal résumé that parallels that of sitting justices or a current federal judge with a recent record of unanimous Democratic support.
Even better, the nominee would attract a handful of Republican votes. One potential front-runner for the nomination, Judge Ketanji Brown Jackson, won the support of three G.O.P. senators — Lisa Murkowski of Alaska, Mr. Graham of South Carolina and Susan Collins of Maine — when she was confirmed last June to the Court of Appeals for the District of Columbia Circuit. Although the bar is higher for Supreme Court seats, a recent record of support starts the debate further down the field.
An overly deliberative process would add nothing in an environment this toxic and divisive. No one doubts that some Republicans will pluck a line out of a long-ago legal brief by the nominee and try to spin it as a fatal flaw or attempt to stoke racial tensions by demeaning her credentials. So we should not give more room for the opposition to tarnish the nominee. We need to set a strategy and timeline, ignore those critical of a fair but expedited nomination process — including from inside our own party — and maintain singular focus until the president’s nominee is confirmed.
Moving fast isn’t just a defensive move. It can also help rally the nation. We know that Mr. Biden has committed to nominating the first Black woman to the court. As for any nominee, her qualifications will lead the way. But, when President Obama nominated the first Latina — Justice Sotomayor — it was her incredible life story of growing up in the Bronx as the daughter of parents from Puerto Rico that won the hearts and minds of many Americans, even potential critics like Senator Graham. She remains the Supreme Court’s most popular justice.
The moment Justice Breyer’s replacement is announced, she will instantly become a historic figure. Every woman known to be a contender has a rich story to tell and will set a powerful example for generations of Americans to come. Let’s hurry up and introduce her, and get her ready to join the court.
Stephanie Cutter, a partner at Precision Strategies, was a senior adviser to President Barack Obama as well as a top aide to Senators Harry Reid and Edward M. Kennedy.
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