Live Updates: Biden Vows to Name Supreme Court Nominee by End of February

Speaking with the justice by his side from the Roosevelt Room, Mr. Biden hailed the justice’s four decades on the federal bench, including almost 28 years on the Supreme Court.

Mr. Biden called it a “bittersweet day” and praised Justice Breyer for his “remarkable career of public service and his cleareyed commitment to making our laws work for the people.”

“I think he’s a model public servant in a time of division in this country,” Mr. Biden said.

In a letter to the president made public just after noon, Justice Breyer confirmed his retirement, calling it “a great honor” to have participated in “the effort to maintain our Constitution and the rule of law.”

In brief remarks after the president spoke, Justice Breyer recalled what he often told students who ask about his job. He said he marveled at the diversity of opinions that came before the court and how the American “experiment” managed to continue.

“It’s every race, it’s every religion and it’s every point of view possible,” he said, attributing that quotation to his mother. “It’s a kind of miracle. People that are so different in what they think, and yet they’ve decided to help solve their major differences under law.”

In his letter, Justice Bryer made it clear that he would continue to serve on the court until the end of the term and would not leave before a successor is confirmed by the Senate.

“I intend this decision to take effect when the Court rises for the summer recess this year (typically late June or early July), assuming that by then my successor has been nominated and confirmed,” Mr. Breyer wrote.

That timeline will give Mr. Biden several months to find a successor for Justice Breyer while being confident that he will stay on the court until the new justice is confirmed by the Senate.

In the days ahead, Mr. Biden will be free to make good on the promise he made as a presidential candidate in 2020. Fighting for the Democratic nomination, he pledged to be the first president to select a Black woman for a life appointment to the court.

That decision of whom to nominate as a replacement for Justice Breyer, a liberal jurist, will not affect the ideological balance on the court, where conservatives hold a 6-to-3 majority. But Mr. Biden — who has said repeatedly that he views efforts to promote diversity as a big part of his legacy — is poised to make a historic and long-lasting imprint on what the court looks like.

In his remarks on Thursday, Mr. Biden said he would look broadly for advice from outside legal experts, senators and others. He made a point of saying that he would look to Vice President Kamala Harris, whom he called an “exceptional lawyer.” She is a former attorney general of California who served on the Judiciary Committee when she was in the Senate.

“I will listen carefully to all the advice I’m given, he said.

Still, speculation has already focused on three Black jurists seen as the most likely candidates. They are Ketanji Brown Jackson, a 51-year-old judge on the U.S. Court of Appeals for the District of Columbia Circuit; Leondra R. Kruger, a 45-year-old justice on the California Supreme Court; and J. Michelle Childs, 55, a Federal District Court judge in South Carolina whom Mr. Biden recently nominated for a judgeship on a federal appeals court.

The president could still pick someone else, and he is not required to elevate someone who is already a judge, though that is by far the most common route to the Supreme Court. Some of Mr. Biden’s predecessors have picked politicians, lawyers or law professors.

But the president is not expected to stray from his pledge to ensure that his pick is a Black woman, and he emphasized that pledge on Thursday.

In his letter, Justice Breyer wrote that he appreciated the privilege of serving on the court for almost 28 years, saying “I have found the work challenging and meaningful. My relations with each of my colleagues have been warm and friendly.”

It is believed to the first time a 50-50 Senate will try to confirm a Supreme Court justice.

Mr. Durbin said he intended to move a nominee “expeditiously” through the process. But a person familiar with his thinking cautioned that the split nature of the committee could prompt delays if Republicans try to drag out the process.

Mr. Durbin does not plan to cut Republicans out of the process to try to ram a nominee through the committee, the person said, aware that doing so could encourage them to use dilatory tactics, such as boycotting meetings to deny the panel a quorum. That could lead to the process taking longer than the roughly five weeks it took Senate Republicans to vet and confirm Justice Amy Coney Barrett in 2020, a time frame that Senator Chuck Schumer, Democrat of New York and the majority leader, would like to replicate.

Republicans could try to slow down the process, as Democrats did with Justice Barrett’s nomination, by demanding that all members be physically present in the chamber to conduct business and forcing roll-call votes. If the nominee cannot gain any Republican support in committee, it could prompt Mr. Schumer to try to draft the nominee out of the committee and onto the floor.

Mr. Durbin has already begun reaching out to moderate Republicans such as Senator Susan Collins of Maine, who could potentially support Mr. Biden’s choice to the bench. Ms. Collins told reporters in Maine that Mr. Durbin had called her and pledged to help facilitate access to the nominee and provide her with any documents and materials she requested.

Ms. Collins said there was “no need for any rush,” according to comments she gave The Bangor Daily News that were confirmed by her office. Justice Breyer does not plan to retire until the high court ends its term in June, potentially giving senators months to vet a nominee once Mr. Biden announces a candidate. Mr. Biden has said he will nominate a Black woman to fill the vacancy by the end of February.

“We can take our time, have hearings, go through the process, which is very important,” Ms. Collins said. “It is a lifetime appointment after all.”

Mr. Durbin’s staff and the staff of the top Republican on the committee, Senator Charles E. Grassley of Iowa, will also begin jointly coming up with a questionnaire for the candidate after Mr. Biden announces her.

Mr. Durbin, 77 and in his fifth term, won a power struggle in 2020 to become the top Democrat on the committee, replacing Senator Dianne Feinstein of California, who stepped aside under intense pressure from progressive activists who deemed her insufficiently aggressive for the job.

Ms. Feinstein drew criticism from some liberals on Wednesday when she said in a statement that the committee had “ample time” to consider a nominee.

A speedy and smooth nomination process would be a boost for Mr. Durbin after months of frustration over unsuccessful efforts to overhaul immigration laws. He has so far been stymied by opposition from Republicans and adverse rulings from the Senate parliamentarian, who knocked down several attempts to include protections for young immigrants and others in Mr. Biden’s sweeping domestic policy package. Talks he held with Republicans to try to reach a compromise on immigration laws went nowhere.

The White House first evaluates potential candidates. This step can include asking contenders about their experience, writings and backgrounds; searching for any problems that could derail the nomination — including an F.B.I. background check — and interviewing some of them.

The president picks a nominee.

Mr. Biden is expected to interview a small number of finalists before selecting a nominee. It is a common ritual for presidents to invite Supreme Court nominees, along with their families, to come to the White House, where the decision is announced.

The Judiciary Committee vets the nominee.

After the president formally sends the nomination to the Senate, the matter is referred to the Senate Judiciary Committee, which asks the nominee to complete a lengthy questionnaire. Questions typically cover educational and legal experience, including work histories, a list of significant cases a nominee worked on, and a compendium of published writings and any record of public remarks made throughout their careers.

While committee staff of both parties are scouring that material and researching the nominee themselves, the nominee typically visits each senator on the committee for a personal conversation.

The committee holds a confirmation hearing.

Confirmation hearings for a Supreme Court justice typically last four days. On the first day, a senator introduces the nominee, who gives an opening statement.

Two days of questioning usually follow, with each senator asking questions. On the fourth day, the nominee does not appear, but instead witnesses invited by each side testify for and against the nominee.

Afterward, senators typically submit follow-up questions to the nominee, who answers them in writing. On rare occasions, if some issue has arisen, a nominee may be asked to return for additional testimony.

Ultimately, the committee will hold a televised debate. Finally, the senators on the panel vote on whether to recommend that the full Senate approve the nominee.

The full Senate considers the nominee.

In the penultimate stage of the process, all 100 senators debate and vote on the nomination. There are two steps.

First, the Senate debates and then votes on whether to “invoke cloture,” meaning proceed to bringing the matter up. Once the matter is squarely before the Senate, the lawmakers will debate again on whether to consent to the appointment of the nominee.

Both can be approved by a simple majority of 51 senators, or 50 senators and a tiebreaking vote cast by Vice President Kamala Harris.

The nominee is confirmed and appointed.

If a majority of the Senate vote to approve the nomination, that person is confirmed. Mr. Biden can take the final step: formally appointing that person as a life-tenured justice.

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Writing in The Wall Street Journal, Jonathan Turley, a constitutional law professor at George Washington University, said that in his search for diversity, Mr. Biden’s was using “a criterion that the court itself has found unconstitutional for public educational institutions and unlawful for businesses.”

But it may be that the president’s critics have a short memory. In 1980, Ronald Reagan used a similar demographic promise as he fought for support among female voters in his battle for the White House against Jimmy Carter.

At a news conference in October of that year — just weeks before Election Day — Reagan promised that, if elected, he would name the first woman to sit on the Supreme Court.

“It is time for a woman to sit among our highest jurists,” Reagan said. “I will also seek out women to appoint to other federal courts in an effort to bring about a better balance on the federal bench.”

After he was elected, Reagan followed through, selecting Sandra Day O’Connor, then a judge in Arizona, for a seat on the court. (Barry Goldwater, a conservative Republican senator from the state, had recommended her for the job.)

Reagan received criticism from the right for the nomination, but not because of her gender. Anti-abortion activists at the time said they feared she would uphold Roe v. Wade, the landmark court ruling legalizing abortion.

The Rev. Jerry Falwell, the head of the Moral Majority at the time, asserted that Ms. O’Connor supported “the biological holocaust” of abortion and said the nomination would be a disaster for men and women.

Justice O’Connor went on to vote in favor of Roe V. Wade.

“My first thought is just that it moves us one step closer in a long journey towards racial justice,” Representative Ro Khanna, a progressive Democrat of California, said in an interview. “It’s really about what you want America to be over the next 50 years.”

Mr. Khanna added that the vacancy could be a “galvanizing” moment for voters across the Democratic spectrum who were feeling dejected, particularly after Mr. Biden’s failure to push Democratic senators to pass voting-rights legislation.

LaTosha Brown, a co-founder of Black Voters Matter, skipped Mr. Biden’s voting rights speech in Atlanta this month, criticizing what she said was a White House effort that had come too little and too late.

But on Wednesday, Ms. Brown said she was ebullient over the prospect that Mr. Biden could make good on a different promise, one that he made to voters in South Carolina during the difficult early days of his campaign. Black women, she said, “have stood on the front lines of democracy, not just for ourselves but for others.”

Donna Brazile, the Democratic strategist, became emotional as she discussed the prospect of seeing a Black woman on the court.

“This matters because it’s another symbol — it’s public leadership,” she said. The Supreme Court, she added, “has always been perceived as the domain of white males, and once you put a Black woman in there, honey, you’ve broken up everything.”

A sea change is unlikely: The retirement of Justice Breyer, who at 83 is the court’s oldest member, will do little to shift the ideological balance of the court after its rightward shift from the Trump-era appointments of three more conservative justices.

“President Biden’s nominee will receive a prompt hearing in the Senate Judiciary Committee, and will be considered and confirmed by the full United States Senate with all deliberate speed,” Senator Chuck Schumer, Democrat of New York and the majority leader, said on Wednesday after plans for Justice Stephen G. Breyer’s departure became public.

Democrats could confirm a successor to Justice Breyer without any Republican support under Senate rules that shield a Supreme Court nomination from a filibuster, but they must remain firmly united to do so.

With the Senate evenly split, Vice President Kamala Harris could be called upon to break a tie vote over any nominee, giving Democrats the upper hand as long as all of the members who usually vote with them rally behind whomever the president chooses.

But even with the numbers and the rules working in their favor, Democrats are well aware that they have a narrow path and that plans could go awry. They are wary of Senator Mitch McConnell, Republican of Kentucky and the minority leader, who has previously bedeviled Democrats on high court fights and is known for finding novel ways to use the chamber’s rules to his advantage, even when they appear stacked against him.

His promise also underscores how much Black women have struggled to become part of a very small pool of elite judges in the nation’s higher federal courts. Speculation on Wednesday focused on a rarefied group of Black women who have elite educations and experience on the bench.

The short list included Ketanji Brown Jackson, a 51-year-old judge on the U.S. Court of Appeals for the District of Columbia Circuit who graduated from Harvard Law School and clerked for Justice Breyer, and Leondra R. Kruger, a 45-year-old justice on the California Supreme Court who graduated from Yale Law School and clerked for former Justice John Paul Stevens.

J. Michelle Childs, 55, a little-known Federal District Court judge in South Carolina whom Mr. Biden recently nominated for an appeals court, is also seen as a potential contender. One of Mr. Biden’s top congressional allies, Representative James E. Clyburn of South Carolina, told Mr. Biden during the presidential campaign that he believed she should be appointed, in part because she came from a blue-collar background, another underrepresented group among federal judges.

Judge Jackson and Justice Kruger attended Ivy League law schools, unlike Judge Childs, who attended the University of South Carolina. And while there are some differences in the women’s backgrounds and experience, they are united in being among a relative handful of Black women who have the kind of credentials normally considered qualifications for the Supreme Court.

The first Black woman to serve as a federal appeals court judge — an experience that in the modern era is usually a key credential in becoming a justice — was appointed by President Gerald R. Ford in 1975. By the time Mr. Biden took office more than 40 years later, only seven more had served in such a position.

Here is a rundown of the age and tenure of the remaining members of the court:

Chief Justice John G. Roberts Jr., who turns 67 on Thursday, was nominated by President George W. Bush in 2005 to replace Chief Justice William H. Rehnquist. In his 16 years on the bench, the court has shifted from four reliably conservative votes to six, delivering the chief justice considerable power on a range of issues. In some cases, he has taken a moderate stance, joining with the court’s liberal bloc, and has often been forced into a public role defending the court’s independence.

Justice Clarence Thomas, nominated in 1991 by President George H.W. Bush, has been one of the court’s most steadfastly conservative members over the past three decades and set himself apart for his eagerness to revisit longstanding legal precedents. At 73, he will become both the court’s oldest and most senior member with Justice Breyer’s departure.

Justice Samuel A. Alito Jr., 71, was nominated by President George W. Bush in 2006. By some measures, he is considered even more conservative than Justice Thomas. Especially in recent years, Justice Alito has grown more public about his conservative stance, telling an audience at the Federalist Society’s annual convention in 2020 that liberals posed a growing threat to religious liberty and freedom of speech.

Justice Sonia Sotomayor was nominated by President Barack Obama in 2009, becoming the first woman of color on the Supreme Court. At 67, she would become the oldest member of the court’s liberal wing.

Justice Elena Kagan, 61, was President Obama’s second nominee to the court in 2010 after serving as his solicitor general, becoming one of only a few justices who had never served as a judge. Along with Justice Sotomayor, Justice Kagan has delivered the most reliably liberal votes among current members.

Justice Neil Gorsuch, 54, the first of President Donald J. Trump’s three nominees, was confirmed in 2017. Despite a strong conservative stance on most questions, Justice Gorsuch has swung left on select occasions, such as siding with gay and transgender workers in a 2020 case testing the reach of the Civil Rights Act.

Justice Brett Kavanaugh, 56, was nominated by President Trump in 2018. Though widely noted for his conservative philosophy, Justice Kavanaugh last year surprised some observers by replacing Chief Justice Roberts at the court’s ideological center, voting with the majority in split decisions in 87 percent of cases.

Justice Amy Coney Barrett was nominated by President Trump in 2020 after a contentious fight to fill the seat previously held by Justice Ruth Bader Ginsburg, a liberal. As an appeals court judge, Justice Barrett earned a reputation as profoundly conservative on issues including abortion and gun rights. She will turn 50 on Friday, making her both the youngest and the newest member of the court — at least for now.

On the importance of the court: “I think it is terribly important to have an institution where I see every kind of American, every race, every religion, every possible point of view. And they have decided to come into a courtroom to resolve their differences rather than through violence on the street.”

On lifetime appointments for Supreme Court Justices: “I actually think if you were doing it afresh, you wouldn’t need to have a lifetime appointment. The Constitution doesn’t actually say lifetime. It says they will have their office during good behavior, and that has been interpreted as lifetime. And as a very practical matter, I think you should have a long term, and the reason that you should have a long term is because you don‘t want the judge sitting there thinking what is his next job going to be. That is just a thoroughly bad idea.”

On politicizing the Court, from “The Authority of the Court and the Peril of Politics” (2021): If the public comes to see judges as merely ‘politicians in robes,’ its confidence in the courts, and in the rule of law itself, can only decline,” With that, the Court’s authority can only decline, too, including its hard-won power to act as a constitutional check on the other branches.

On reading widely: “Law requires both a head and a heart. You need a good head to read all those words and figure out how they apply. But when you are representing human beings or deciding things that affect them, you need to understand, as best you can, the workings of human life.”

On the future: “One hundred years from now we will have recently inaugurated a president of the United States, following a free election the preceding November. I share that prediction and hope. It sounds unremarkable; yet that very fact — that it is unremarkable — suggests something unique about our society.”

But there was little evidence of that in recent months. In cases on abortion, immigration and the Biden administration’s responses to the coronavirus pandemic, he repeatedly found himself in dissent.

His voting over the years was generally similar to that of other Democratic appointees, if perhaps a little more conservative, according to a new report from Lee Epstein and Andrew D. Martin of Washington University in St. Louis and Kevin Quinn of the University of Michigan.

The report found that he cast the smallest percentage of liberal votes among the Democratic appointees with whom he served — Justices Ginsburg, Sonia Sotomayor and Elena Kagan. His disagreements with the other liberals, the report found, “tended to fall disproportionately in the area of criminal procedure.”

In 2013, for instance, he voted with the majority to allow the police to take DNA samples from people arrested in connection with serious offenses. The other liberals dissented.

Though he made frequent public appearances in all sorts of settings, he was far less prominent than some of his more colorful colleagues. He routinely came in last in public opinion surveys in which respondents were asked to name the justices.

In a Marquette Law School poll released this month, only 21 percent of Americans said they were able to express an opinion about him, the lowest for any member of the court.

Still, when he was promoting a book he could seem ubiquitous. Last year, he gave countless interviews in connection with the publication of “The Authority of the Court and the Peril of Politics.”

The book explored the nature of the court’s legitimacy and said it was undermined by labeling justices as conservative or liberal. Drawing a distinction between law and politics, Justice Breyer wrote that not all splits on the court were predictable and that those that were could generally be explained by differences in judicial philosophy or interpretive methods.

In an interview with The New York Times, he acknowledged that the politicians who had transformed confirmation hearings into partisan brawls held a different view, but he said the justices acted in good faith, often finding consensus and occasionally surprising the public in significant cases.

“Didn’t one of the most conservative — quote — members join with the others in the gay rights case?” he asked in the interview, referring to Justice Neil M. Gorsuch’s 2020 majority opinion in a ruling that a landmark civil rights law protects gay and transgender workers from workplace discrimination.

Justice Breyer was an idiosyncratic questioner on the Supreme Court bench. Lawyers appearing before the court sometimes resented his elaborate hypothetical questions, which could resemble an interior monologue with a point discernible only to him. They sometimes ended with a simple request: “Respond.”

At the same time, his questions were evidence of intense curiosity and an open mind, which often contrasted with the more strategic inquiries of his fellow justices.

In his judicial writing, Justice Breyer sometimes drew fine distinctions.

He was, for instance, the only justice in the majority both times in a pair of 2005 cases that allowed a six-foot-high Ten Commandments monument on the grounds of the Texas Capitol but held unconstitutional the posting of framed copies of the Commandments on the walls of Kentucky courthouses. A conservative bloc of justices would have upheld both kinds of displays, while a liberal bloc would have required their removal.

Justice Breyer wrote the majority opinion in 2000 in Stenberg v. Carhart, a 5-to-4 decision that struck down a Nebraska law banning a procedure that its opponents called partial-birth abortion.

He was characteristically balanced in presenting the clash of values.

“Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it,” he wrote. “Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering.”