Just hours after the retirement announcement of Justice Stephen Breyer, the president was already facing increased pressure to get the gears of the nomination and confirmation processes moving. While Biden has said he intends to make his choice by the end of February, his history of missing major deadlines is causing concern. And some Democrats concede they’re already worried that a single illness, death or retirement could throw it all into chaos.
Dems to Joe Biden: Move fast on SCOTUS a tragedy would ensue
“You don’t know what the circumstances may bring, whether it’s the loss of a member or somebody crossing over to the other party,” said former Senate Majority Leader, Tom Daschle (D-S.D.), who led the last evenly-split upper chamber. “That’s something that ought to be very much on their minds right now.”
Daschle is acutely familiar with how tenuous a majority can be. Two decades ago, the Senate was split 50-50 when then-Sen. Jim Jeffords left the Republican party, throwing control of the chamber to Democrats and thrusting Daschle into the post of majority leader.
Nobody is predicting such a dramatic change this go-round, at least not before Breyer’s seat is filled. But Jeffords’ switch has been cited since news of the justice’s pending retirement broke as a means of underscoring the sheer unpredictability of such a closely-divided government in an election year. More recently, Democrats saw how delicate their majority was, when, earlier this month, plans to vote on election reform changed at the last minute after Sen. Brian Schatz (D-Hawaii) tested positive for Covid.
“He should get the person confirmed right away,” said Marc Morial, president of the National Urban League. “Somebody in the Senate could resign, somebody in the Senate could die. The makeup of the Senate 50-50 could be altered by one career decision or tragedy. You can’t wait.”
Marc Morial, president of the National Urban League
For Biden, who repeated his pledge to nominate a Black woman to the post, the next month presents risks and opportunities. A well-executed Supreme Court confirmation depends on due diligence from the nominee and her team. But the call to move fast is not merely driven by the realities of the slimmest possible Senate majority. There is also a sense of political urgency in Biden’s orbit as his standing has been on a downward trajectory since last fall.
Hanging over it all is a deep consternation on the left after experiencing so many setbacks on the Supreme Court in recent years — from the GOP blockage that stopped them from filling a vacant seat under former President Barack Obama to the scandal-marred confirmation of Justice Brett Kavanaugh to Justice Ruth Bader Ginsburg’s death and the GOP rush to replace her in the waning days of Donald Trump’s tenure.
Psaki said that Biden has been reviewing bios of potential candidates since last year. And while she noted that Republicans have some power to complicate the confirmation, the White House also plans to engage with GOP lawmakers and hear their point of view throughout. Biden has shown eagerness to ensure that both his selection and the Senate’s consideration is seen as solemn, serious and deliberate
hat desire has led to busted timelines and unmet expectations in the past. Recently, it was in choosing nominees to fill vacancies at the Federal Reserve, which Biden finally did on Jan. 14, following months of speculation and waiting. Two summers ago, Biden missed at least two self-imposed deadlines before choosing Kamala Harris as his vice president, allowing so much time to pass that allies for several of the other prospective candidates were able to circulate negative stories designed to tarnish the image of their rivals.
“My concern is if he takes too long to make a decision the lobbying from the different camps over who they want to be nominated will spiral out of control,” said Jim Manley, a former top aide to the late Democratic Senate leader Harry Reid.
While the White House will ultimately appoint a congressional sherpa for whoever is nominated, current preparations are being led by White House chief of staff Ron Klain and White House counsel Dana Remus. It’s a familiar role for Biden and Klain dating back to their time on the Senate Judiciary committee, where they were deeply involved in past confirmation fights. Biden also noted he would be closely consulting with Harris, a former attorney general of California and a district attorney who is the first Black woman to serve in the role.
Names of possible nominees under consideration include Ketanji Brown Jackson of the D.C. Circuit court, Leondra Kruger of the California Supreme Court, J. Michelle Childs of the South Carolina district court and Sherrilyn Ifill of the NAACP Legal Defense Fund. Wilhelmina Wright, a district court judge and former Minnesota Supreme Court justice, as well as New York University law professor Melissa Murray, are also under consideration, said a source familiar with White House deliberations.
The historic confirmation of the first Black woman to the highest court in the country could also be a catalyst for Democratic voters who have questioned Biden’s commitment to their priorities. A January Atlanta Journal-Constitution poll found that Biden’s approval rating in Georgia — a state he won in 2020 — had dropped from 51 percent in May of last year to 34 percent. Among Black voters in the state, Biden’s disapproval rating has increased by 28 points since last May.
Though the White House continues to work on Biden’s social spending plan, some White House advisers view the confirmation process as a potential moment to give Democrats breathing room on the bill, which Congress needs more time on to find consensus.
For others in the party, the nomination provides Biden with something he’s lacked as president: a chance to manage events around him.
“This is an example of something that is totally within the president’s control. Who gets nominated,” said Leah Daughtry, a longtime Democratic official and former CEO of two DNC conventions. “It's a political moment for the people in the base to say here's a man who kept his promise to us, and so we can count on him keeping his word for the rest of his promises.”
Daughtry said she grew “a little emotional” watching Biden’s remarks on Thursday announcing Breyer’s retirement. “It's almost like a Barack Obama moment for me, as a Black woman, to contemplate that there will be a black woman on the court,” said Daughtry.
Cornell Belcher, a veteran Democratic pollster who worked for Obama, said the confirmation fight could be more than just a boost for Biden but also a “trap” for Republicans.
“Does Mitch McConnell and Republicans want to spend the next couple of months attacking a Black woman awakening this giant that usually usually sleeps through midterms?” said Belcher, referring to young voters, Black voters and women voters. “This is a fight that I think frankly, would be a gift for our ability to mobilize and organize these voters who are the most problematic for us during midterms.”
The early response from conservatives has been to engage the debate along the lines that Belcher outlined. Activists and media figures on the right accused Biden of engaging in a reverse form of racism by limiting his search to a Black woman. Senate Minority Leader Mitch McConnell (R-Ky.), meanwhile, warned Biden against “outsourcing” his first Supreme Court pick to the “radical left.”
But early expectations in conservative circles is that Republicans have only a slim chance of actually stopping Biden from getting his pick approved. On the Hill, Senate Democrats are gearing up for a swift confirmation, with Majority Leader Chuck Schumer considering a timeline similar to the confirmation of Justice Amy Coney Barrett.
Barrett was confirmed roughly a month after former President Donald Trump announced her nomination. Sen. Patrick Leahy (D-Vt.), former chair of the Judiciary Committee and a current panel member, urged Biden Thursday to make his selection “very quickly.”
“Fortunately they have a number of people that have already done some pre-clearance,” Leahy said. “After seeing the just outrageous and total violation of custody and rules we saw with Merrick Garland, we don’t want to see that again.”
The Judiciary Committee is already preparing for hearings. Democrats on the panel met Thursday afternoon to discuss the next steps. A committee spokesperson said that chair, Dick Durbin (D-Ill.), “is committed to working with his colleagues on both sides of the aisle to ensure fair and timely consideration of” the pick.
Durbin said Thursday that Klain called him at 9:30 a.m. Wednesday, hours before the news broke of Breyer’s retirement.
“And I asked Mr. Klain, ‘do you have a nominee?,’” Durbin told reporters. “He said, ‘we’re in the process. No one’s been chosen yet.’ So it’s a little early to predict the timetable for this hearing.”