OPINION: This article contains commentary which may reflect the author's opinion
The Associated Press reported on Wednesday that liberal Supreme Court Justice Stephen Breyer is retiring, giving Joe Biden an opening he will fill by appointing a woman, the first black woman to the high court.
The 83-year-old Breyer has been a pragmatic force on a court that has evolved into a more conservative one in recent years, working with moderates right and left of center to forge majorities.
As a precaution against pre-empting Breyer’s eventual announcement, the sources spoke on the condition of anonymity.
Justice Breyer has served on the Supreme Court since 1994, appointed by President Bill Clinton. In addition to the late Justice Ruth Bader Ginsburg, Breyer did not step down when Democrats controlled the White House and the Senate during the presidency of Barack Obama. Following Ginsburg’s death in September 2020, then-President Donald Trump appointed a conservative justice, Amy Coney Barrett.
If Breyer leaves the court over the summer, the 6-3 conservative advantage will remain the same since his successor will be nominated by Biden and almost certainly confirmed by the small Democratic majority in the Senate. Clarence Thomas will also become the oldest member of the court at 73.
In his presidential campaign, Biden said if he were given the chance to nominate someone to the court, he would choose a Black woman. Moreover, the news on Wednesday that Breyer will retire should provide Biden with this opportunity.
“As president, I’d be honored, honored to appoint the first African American woman. Because it should look like the country. It’s long past time,” Biden declared in February 2020 prior to South Carolina’s presidential primary.
Since Biden’s election, the White House has reaffirmed his campaign promise.
Federal appeals judges make up most of the recent Supreme Court picks. Since Biden’s inauguration in January 2021, he has dramatically increased his options in that pool of potential candidates by nominating five Black women who sit on federal appeals courts, while three more nominations are awaiting Senate approval.
A Black woman being selected for the lifetime post on the nation’s highest court would be historically significant. The court will have four women for the first time and two of its nine justices will be black for the first time. In addition to being the only Black justice on the court, Clarence Thomas is only the second Black justice in history after Thurgood Marshall, who he replaced.
Biden will most likely want to show Black voters angry at a president they helped elect that he is serious about their concerns, in light of the fact that he has not been able to achieve the so-called “voting rights” legislation. Biden poll numbers are so bad now, he must do what he to prop them up before the midterms which Republicans are heavily favored to sweep.
However, replacing Breyer with another liberal justice would not alter the court’s ideological makeup. The court is 6-3 conservative, and Donald Trump’s three nominees pushed the court further to the right.
As part of their campaign to diversify the judiciary, Biden’s team has consulted with the NAACP Legal Defense Fund, Black caucus members, Congressman Jim Clyburn, D-South Carolina, along with other prominent Democratic lawyers.
Despite a narrower field and the court’s majority staying the same, a nominee’s chances of making it to the court are still uncertain.
Chuck Schumer, the New York senator who leads the Senate majority, said that 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.”
However, Republicans remain angry about the 2018 Brett Kavanaugh hearing. Democrats still need 50 votes and a tiebreaker with vice president Kamala Harris to confirm a nominee.
GOP senators who altered Senate rules so the Supreme Court nominees would be confirmed by simple majority appeared resigned to the outcome. In a statement, South Carolina Senator Lindsey Graham, the top Republican on the Senate Judiciary Committee, said: “If all Democrats hang together — which I expect they will — they have the power to replace Justice Breyer in 2022 without one Republican vote in support.”
However, Democrats have not been able to get all their members on board with Biden’s social and environmental spending agenda or to move forward with the “voting rights” bill.
With a confirmation, Joe Biden is uniquely knowledgeable about the challenges.
As a senator, he chaired the Judiciary Committee from 1987 to 1995, overseeing the confirmation hearings of six Supreme Court nominees, including Breyer’s.
A person who will play a critical role in Biden’s process is his chief of staff Ron Klain. Klain was a Supreme Court law clerk and chief counsel on the Senate Judiciary Committee. Klain, in 1993, while working as an attorney for the White House, was summoned to breakfast with Justice Byron White, on whose staff he had clerked, only to be met with White saying that he was resigning.
Meanwhile, the far-left Klain, who has angered many Democrats in power, hinted Tuesday that he could leave the Oval Office soon, perhaps by the end of 2022.