Liberal justice Stephen Breyer, who turns 84 this year, has either decided to take it easy or bowed to pressure to vacate his Supreme Court seat while Biden still has the Senate votes to replace him with another liberal.
It’s not 100% sure a Biden pick couldn’t be confirmed if Democrats lose the Senate in this fall’s midterms, as a couple of GOP senators might vote for a well-qualified candidate despite GOP Senate leader McConnell’s determination to hold court vacancies open for the next Republican president even if it takes 6, 10, or 18 years.
McConnell has made clear a GOP-controlled Senate led by him will never, ever confirm any Democratic president’s Supreme Court nominee, in the rest of human history, based on his firm belief only Republicans can be allowed to sit on the nation’s highest court. Presumably this applies to lower federal courts, too.
Which is another reason to never vote for Republicans, because this country isn’t 100% Republican — or even majority-Republican — and the rest of us are entitled to be represented in the judiciary, too. Especially given the extreme positions taken by some Republican judges, and the danger we’re now in that legal reasoning is being replaced by exercises of partisan power on the nation’s courts.
The obvious, no-brainer, candidate to replace Breyer is Ketanji Brown Jackson, who was appointed as a D.C. Circuit district judge by Obama in 2013 and promoted by Biden to the D.C. Court of Appeals last year, at that time getting 3 Republican votes for her confirmation.
Jackson, or KBJ as she’s often referred to, has the customary credentials for the Supreme Court: Harvard, magna cum laude; Harvard Law, cum laude and Harvard Law Review; law clerk at the district court, appeals court, and Supreme Court (for Breyer) levels; along with well-rounded legal experience: Private practice with a high-profile D.C. law firm, federal public defender, and government service (with the U.S. Sentencing Commission). This is someone who was minted, trained, and groomed to sit on the Supreme Court.
Nominating her would also keep Biden’s promise to appoint a black woman.
KBJ’s elevation to the Supreme Court wouldn’t change the ideological makeup of the court. A liberal appointee would replace a retiring liberal justice, leaving the court with its current 6-3 conservative tilt (a makeup grossly out of sync with the ideological makeup of the American people, who collectively are far more liberal than the court presently is). It would, however, protect one of the remaining liberal seats on the court; and, equally if not more importantly, if only for its symbolic value, replace a white man with a black woman.
There are other potential nominees, of course, but this is the one to watch. Breyer will formally retire in June, at the end of the court’s current term, and Biden will be under pressure to name his replacement before the November elections. He probably doesn’t have to think very much about this one, except he must, of course, consider the political calculus — meaning Manchin and Sinema, and if they don’t cooperate, whether he can pry loose any GOP votes. (For a political analysis, go here.)
A high-quality, easily-confirmable, Supreme Court pick would test whether GOP senators like Romney, Collins, and Murkowski put country above party, or party above country, something we’d like more clarity on. If they vote to steal another Supreme Court seat from a Democratic president entitled by the Constitution to fill it, then they’re nothing but party hacks, and can’t claim to be anything else.
You can bet they’ll be invited to the White House for conversations with the president in coming weeks and months, both for Biden to feel them out, and for them to express their views on a potential nominee. And they understand, of course, that Biden’s nominee — whoever it is — won’t be another Brett Kavanaugh or Amy Comey Barrett.
Related stories: Democratic Senate leader Schumer plans to fast-track confirmation (read story here), and Sen. Patty Murray of Washington called on Biden to nominate a black woman (read story here).