By Jessie Seigel / Washington, D.C.
After a huge amount of shoving by eager Democrats, 83-year-old Justice Stephen Breyer is finally retiring from the Supreme Court. The party’s goal is unambiguous: to make room for a liberal of younger vintage, and to permit President Biden to appoint the next justice while the Democrats still have control of the Senate. Biden has pledged make good on his promise two years ago to appoint the Supreme Court’s first Black female Justice.
Of 115 justices appointed to the Court, 110 have been men and 112 have been white. As Biden said of his plan for this next appointment: “In my opinion, it’s about time.” Though the appointment of a liberal will not immediately affect the Court’s lopsided tilt to the extreme right, the appointment of its first Black woman will nevertheless be historically momentous. Black women, who comprise 7 percent of the U.S. population, make up just 2 percent of the nation’s lawyers..
“My first thought is just that it moves us one step closer in a long journey towards racial justice. It’s really about what you want America to be over the next 50 years,” Democratic California Rep. Ro Khanna told the New York Times.
And Donna Brazile, Democratic strategist and former acting chair of the Democratic National Committee said, “This matters because it’s another symbol—it’s public leadership.” She added that the Supreme Court “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.”
The Possible Nominees
It is clear there is no shortage of extremely well-qualified Black women for Biden to choose from for his appointment to the Court. There are three apparent front-runners, each with an impeccable legal pedigree and, importantly, young enough to have a long career on the Court.
The 51-year-old Ketanji Brown Jackson is a magna cum laude graduate of Harvard University as well as a graduate of its law school, where she, like Barack Obama before her, was editor of the Harvard Law Review. She clerked for Justice Breyer and is currently a judge on the prestigious U.S. Court of Appeals for the District of Columbia Circuit.
Leondra R. Kruger, 45, graduated from Yale Law School, clerked for former Justice John Paul Stevens, and currently sits as a justice on the California Supreme Court.
Finally, J. Michelle Childs, 55, graduated from the University of South Florida and the University of South Carolina School of Law. She is currently a judge for the United States District Court for the District of South Carolina and was nominated last year by President Biden to serve on the U.S. Court of Appeals for the District of Columbia Circuit .
According to the New York Times, Democratic Rep. James E. Clyburn of South Carolina, suggested Child’s appointment during Biden’s presidential campaign because she comes from a blue-collar background. (Her father was a police officer who died when she was in her teens.) It has been suggested that this could add an additional diversity of experience—adding justices who have not necessarily come out of working for corporations and businesses or from just two Ivy League schools—Harvard and Yale.
In addition, Rep. Clyburn is said to have thought that since Childs attended a South Carolina law school and is a South Carolina District Court Judge, Republican South Carolina Senator Lindsey Graham could be persuaded to vote to approve her appointment. Clyburn has shown himself to possess immense political wisdom. Nevertheless, with Minority Leader Mitch McConnell riding herd on the Senate’s Republican caucus, as well as Graham’s two-faced propensity to toady up to Republican power, I would not take bets on Graham’s vote.
Opposition to the Potential Nominees
Biden has not even chosen a nominee yet and, already, the disgraceful race-baiting attacks have begun.
In an attempt to throw mud on these extremely well-qualified women, the Wall Street Journal’s editorial page stated that choosing a Black woman “elevates skin color over qualifications.”
Fox News’s Maria Bartiromo asked, “I mean, what kind of a qualification is that, being a Black woman?”
Given the stellar credentials of these women, these obnoxious, naked suggestions that they are unqualified and being considered or ultimately chosen only because they are Black should not even be dignified with a response.
But there are other arguments, their racism only slightly disguised, that, though baseless, cannot be ignored because if unanswered, will take root and fester.
Fox News’ Tucker Carlson claimed Biden is using so-called identity politics as a test for qualifications to become a justice.
And, in the Wall Street Journal, conservative constitutional law professor Jonathan Turley of George Washington University, claimed that Biden was using “a criterion that the court itself has found unconstitutional for public educational institutions and unlawful for businesses.”
But Biden is not the first to make good on a promise to choose a nominee from a specific societal group. In 1980, struggling for support of female voters, and just weeks before Election Day, Ronald Reagan promised that, if elected, he would name the first woman to sit on the Supreme Court. Once elected president, he followed through, appointing Sandra Day O’Connor. Reagan claimed he was doing so to “bring about a better balance on the federal bench.” Although O’Connor, then a judge in Arizona, was qualified, in his choice, Reagan was emphasizing the need for “balance.”
As if denigrating the nominees is not enough, Carrie Severino, president of the right-wing Judicial Crisis Network—a 501c(4) group that does not have to disclose its donors—is furthering another Big Lie—that the judicial nominations by the Biden administration have been backed by corrupt dark money ties.
Can a Biden Supreme Court Nomination Overcome Opposition?
When President Biden appointed Ketanji Brown Jackson to the U.S. Court of Appeals for the D.C. Circuit, three Republicans—Senators Susan Collins of Maine, Lindsey Graham of South Carolina, and Lisa Murkowski of Alaska voted to confirm her.
However, Senate Minority Leader Mitch McConnell has a history of herding his caucus to successfully block Democratic agendas, regardless of whether his party is in the majority or minority. So, it is less than an even bet whether those three will vote for Biden’s Supreme Court nominee, whoever she may be.
McConnell is known for twisting the Senate’s rules in unconventional ways to get what he wants, especially as related to judges. While majority leader, he famously refused to even hold a hearing on President Obama’s nomination of Merrick Garland to the Supreme Court, claiming that year four of Obama’s administration was too close to the coming 2016 election. But when the liberal Justice Ruth Bader Ginsburg died just six weeks before the 2020 election, McConnell pushed through the confirmation of the ultra-conservative Justice Amy Coney Barrett to replace her, over Democratic opposition, in 30 days.
So far, McConnell’s main comment on Biden’s possible nominee has been that he should not “outsource” his Supreme Court nominee to the “radical left.” But on June 14 2021, McConnell told broadcaster Hugh Hewitt that a Republican controlled Senate most likely would not hold a confirmation vote on a Biden Supreme Court nominee until after the 2024 presidential election—a threat to be taken quite seriously since McConnell already did this to President Obama.
Excruciatingly aware of that likelihood, Democrats recognize the urgency of confirming any nominee before the 2022 election, when Republicans might take control of the Senate.
While Republicans may hypocritically decry a speedy confirmation process, I say: what’s good for the goose is good for the gander. And apparently the Democrats are proceeding accordingly.
President Biden has stated he will decide on his nominee before the end of February.
Senate Majority Leader Chuck Schumer reportedly “wants to replicate” the timetable McConnell used for Justice Amy Coney Barrett. And Senator Dick Durban, Chair of the Judiciary Committee, has vowed to move the nominee “expeditiously through the committee.”
It appears, on this occasion, that McConnell’s ability to stymie the process is greatly limited.
Since Supreme Court nominations are no longer subject to filibusters, Democrats will not need any Republican support to confirm Mr. Biden’s nominee if every Democrat supports her.
And since the majority party holds the chairmanship of the Judiciary Committee, the Democrats control the schedule for nominees to come to the floor for votes—even if the committee vote is tied. (Because the Senate is divided 50-50 between Democrats and Republicans, the Senate is operating under an organizing resolution that provides for equal numbers of each party on each committee.)
Some Republicans are hoping that Democratic Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, who have repeatedly obstructed portions of President Biden’s agenda during his administration’s first year, will do a repeat performance of their votes concerning the Voting Rights bills by voting against a so-called too-liberal nominee. But Democrats take comfort from the fact that, so far, both Manchin and Sinema have been reliable votes for Biden’s lower court nominees.
Commentators have pointed out there are maneuvers that could slow down the confirmation process—demanding all members be physically present in the chamber to conduct business; forcing roll-call votes; and boycotting the Judiciary Committee to deny a quorum, or forcing the Democratic majority to break Senate rules to advance the nominee. But use of some of these strategies by Democrats did not prevent the swifter-than-light confirmation of Amy Coney Barrett.
Nevertheless, Mitch McConnell is a wily character. So it is a good thing that, in his
resignation letter to President Biden, Justice Breyer said he would leave at the end of the Supreme Court’s current term, in late June or early July, “assuming that by then my successor has been nominated and confirmed.” This language leaves a loophole permitting Breyer to remain on the Court if the Republicans prevent Biden’s nominee from being confirmed.
The Confirmation Process
Since Biden made his pledge about naming a Black woman two years ago, you can bet that the White House has been busy vetting the potential nominees, including their experience, writings, and backgrounds; interviews, and doing F.B.I. background checks for a long time. As that process intensifies, the media will play an unofficial role in digging up facts (and dirt) about each potential candidate.
After the president names his nominee, which he has promised to do by the end of the month, the vetting process moves to the Senate Judiciary Committee. There, the nominee will complete a questionnaire covering educational and legal experience, work history, a list of significant cases worked on, published writings, and any record of public remarks. If tradition holds, she will meet with each senator on the committee as well.
The Judiciary Committee then holds a confirmation hearing, which typically lasts about four days, including an opening statement, questioning by committee members, and witnesses, pro and con. This is followed by debate and the committee’s recommendation to the Senate as a whole.
The full Senate then debates and votes whether to approve the nomination. If the nominee is confirmed, the president then formally appoints the nominee.
The Impact of a New Justice
Replacing Breyer now will not gain Democrats a majority on the Court, but it could prevent its movement in an even more rightward direction. It would also allow Biden to bolster the longevity of the liberal side of the court. Justices Sonia Sotomayor and Elena Kagan are 67 and 61 years old, respectively, not as old as Breyer but not spring chickens either. Adding any of Biden’s short-listed potential nominees would add youth and potentially longevity to the Court.
In a show of sour grapes, Republicans have been publicly dismissive of the importance of this change of the Court’s makeup. Republican Senator John Barrasso of Wyoming sneered, “Replacing one liberal with another liberal, that’s just running in place.”
But it is more than that. The effect will be to prevent the possibility of Breyer, like Justice Ruth Bader Ginsburg, dying while still on the Court during a period when Republicans could install a seventh young, ultra-conservative justice. Considering the ages of Biden’s contenders, they—like the recently installed right-wing justices—would probably be on the Court for decades to come. And that not only saves what liberalism is left on the Court, but begins the long process of building towards the future.
Furthermore, this confirmation process could remind midterm voters how important it is to keep a Democratic majority in the Senate. According to the New York Times, Democratic pollster Geoff Garin pointed out, “At a time when some Democratic voters are feeling unsure of what the benefit of a Democratic majority is, having a Supreme Court fight makes the importance crystal clear to voters.”
In addition, as civil-rights activist Al Sharpton said, the historic first of appointing a Black woman to the Supreme Court could “energize people that have been in many ways demoralized around voting.”
The chances for confirmation of the first Black woman to the Supreme Court look good—and to hell with the begrudgers. The nation has a long way to go to win the war to save democracy, let alone the fight for equality. But this is a good start.
Political columnist Jessie Seigel had a long career as a government attorney in which she honed her analytic skills. She has also twice received an Artist’s Fellowship from the Washington, D.C. Commission on the Arts and Humanities for her fiction, and has been a finalist for a number of literary awards. In addition, Seigel is an associate editor at the Potomac Review, a reviewer for The Washington Independent Review of Books, and a dabbler in political cartoons at Daily Kos. Of this balance in her work between the analytic and the imaginative, Seigel jokes, “I guess my right and left brains are well-balanced.” More on and from Seigel can be found at The Adventurous Writer, https://www.jessieseigel.com.