The White House is planning a fast, aggressive effort to nominate the first Black woman to the Supreme Court by the end of February and confirm her swiftly thereafter, reflecting the high stakes of the campaign and the pressure to move quickly in today’s polarized environment.
Breyer’s retirement was expected, though the timing was uncertain, and officials said the search for a replacement was already underway. Biden has been reviewing the biographies of potential nominees for at least a month, and aides have been in touch with outside groups that are assembling lists of prospective picks.
Vice President Harris — the first woman of color to occupy her position — will be central to the process of selecting the nominee, White House press secretary Jen Psaki said. A small group, including White House chief of staff Ron Klain and counsel Dana Remus, will also give the president guidance, and outside advisers are likely to be brought in before the nomination to help shepherd it through the Senate.
Breyer said he will continue to sit on the bench through the end of the Supreme Court term this summer. The administration’s rapid action underlines Democrats’ anxiety about filling his seat, fueled in large part by the party’s concern that their tenuous majority in the Senate could disappear at any given moment due to illness or death, as well as lingering anger about how Senate Republicans rapidly installed Amy Coney Barrett on the Supreme Court.
The quick mobilization also suggests the White House sees the historic nomination of an African American woman as a way for Biden to regain political momentum after a difficult stretch, and it reflects Biden’s personal engagement with judicial nominations since his long service on the Senate Judiciary Committee.
“I’ve made no decisions except one: The person I will nominate will be someone with extraordinary qualifications, character, experience, and integrity, and that person will be the first Black woman ever nominated to the United States Supreme Court,” said Biden.
After the president spoke, Breyer touched on themes he often presents to students. “Of course people don’t agree, but we have a country that is based on human rights, democracy and so forth,” Breyer said in the elliptical, professorial style familiar to lawyers who come before the court.
He quoted one of the most famous passages in President Abraham Lincoln’s Gettysburg Address, adding his own twist. “And we are now ‘engaged in a great civil war’ to determine ‘whether that nation, or any nation so conceived, and so dedicated, can long endure,’” Breyer said. He added: “Of course, I am an optimist. And I’m pretty sure it will.”
The remarks, coming a day after word of Breyer’s intention to retire went public, marked a starting gun of sorts for a flurry of reaction and strategizing by both parties. Biden’s allies hoped the court opening could help him turn the page on a difficult chapter in his presidency.The president’s approval ratings are low, his support among Black voters has slipped, his domestic agenda has stalled and his party is increasingly at risk of losing its slim congressional majorities in this year’s midterm election.
Republicans sought to undercut Biden by suggesting he might cater to the wishes of his party’s liberal wing. “The president must not outsource this important decision to the radical left,” Senate Minority Leader Mitch McConnell (R-Ky.) said in a statement. “The American people deserve a nominee with demonstrated reverence for the written text of our laws and our Constitution.”
For Biden, the chance to install a justice marks the culmination of a decades-long career at the intersection of the three branches of government, often buffeted by issues of race and gender. As chairman of the Senate Judiciary Committee, Biden presided over Justice Clarence Thomas’s confirmation hearing, later saying the proceeding was unfair to Anita Hill, who had accused Thomas of sexual harassment. Biden was vice president when President Barack Obama installed Justices Sonia Sotomayor and Elena Kagan, two of the five women who have served on the court.
Still, the Senate has changed significantly since Biden was a member. The chamber, which has sole jurisdiction over judicial nominations, has grown increasingly polarized and is split 50-50 between the two parties, putting some Democrats on edge. Even a single defection could cause problems for Biden, and the chamber includes several octogenarians whose absence could suddenly shift the dynamic.
Yet there are also reasons for Biden to be optimistic. Centrist Sen. Joe Manchin III (D-W.Va.), who has complicated Biden’s agenda, has been a strong supporter of his judicial nominees. And Sen. Susan Collins (R-Maine), a moderate who has voted to confirm justices nominated by presidents in both parties, signaled she was open to doing so again, though she warned against rushing. Meantime, the White House said it was confident that Harris has the constitutional power to cast a tiebreaking vote if necessary.
Nevertheless, White House officials and Senate Democratic leaders signaled that they intend to move ahead rapidly. Although Biden isn’t likely to put forward a nominee in a week, as President Donald Trump did following the death of Justice Ruth Bader Ginsburg, the president and his aides made clear they have laid some groundwork for the selection and are looking to accelerate the process.
Senate Majority Leader Charles E. Schumer (D-N.Y.) has promised an expeditious schedule, with a confirmation process that could be as short as the four weeks it took Republicans to confirm Barrett. However, some senior Democrats have privately cautioned against setting such ambitious expectations, given the procedural maneuvers Republicans could use to slow down the process.
Senate Judiciary Committee Chairman Richard J. Durbin (D-Ill.) said Thursday he was notified by Klain about a half-hour before news of the retirement was reported publicly. Klain told Durbin that while Biden had not settled on a nominee, the White House was already “in the process,” Durbin said.
Sen. Amy Klobuchar (D-Minn.), another Judiciary Committee member, said she expected the process to move on a “reasonably fast timetable.”
The outcome is expected to have a potentially significant bearing on Biden’s political standing. With the midterms approaching, many Democrats have said the president needs more concrete achievements.
One of Biden’s biggest political problems is rising frustration among Black voters over his failure to enact legislation on voting rights and policing, and the Supreme Court vacancy creates a potentially powerful opportunity for him to reconnect with the Black community. Civil rights leaders praised Biden for keeping his commitment to nominate the first Black woman to the court and said they were prepared to fight for his nominee.
Ben Jealous, president of the advocacy group People for the American Way, said Biden’s nominee will send a message about inclusion and reshape the court to better reflect the country’s diversity. “It’s time to make good on that promise, and we believe that he will,” said Jealous. He said Biden will “have a hard time choosing from the outstanding group” of Black female lawyers and judges being mentioned as possible nominees.
In some ways, the nomination process mirrors Biden’s selection of a running mate. Biden said from the outset that he would pick a woman to join him on the ticket, setting off an impassioned public lobbying campaign from allies of those he vetted. By the end, the jockeying exposed some the complex fault lines in the party and left some feeling deflated their preferred candidate was not picked.
Biden did not mention specific names on Thursday. But discussions among Democrats have focused on three Black women who are veteran jurists and lawyers. Ketanji Brown Jackson, of the U.S. Court of Appeals for the D.C. Circuit, is perceived in legal circles as the front-runner and is a favorite of liberals who admire her background as a public defender.
Another potential pick is Leondra Kruger, who sits on the California Supreme Court and worked as a senior lawyer in the U.S. solicitor general’s office during the Obama administration. Another prospect is J. Michelle Childs, a federal-district court judge in South Carolina who is being publicly pushed by House Majority Whip James E. Clyburn (D-S.C.).
Clyburn told The Washington Post on Thursday that Childs, a South Carolina District Court judge, is Biden’s best option to replace Breyer, and that the state’s two senators — Republicans Tim Scott and Lindsey O. Graham — know her “very well” and “have spoken highly of her.” Asked whether Childs would have the support of Republican senators, Clyburn said, “Absolutely.”
Breyer, who at 83 is the court’s oldest member, had faced pressure from liberal activists urging him to step down so that Biden could nominate a replacement while the party still has a slim advantage in the Senate. Trump was able to install three justices on the court during his four-year term, cementing a conservative majority with the capacity to upend long-standing laws on abortion, guns and other far-reaching matters.
Breyer told Biden in a two-paragraph letter released Thursday that he intends to retire at the end of the term, assuming his replacement is nominated and confirmed. Throughout nearly 14 years as an appellate judge and nearly 28 years at the Supreme Court, “I have been aware of the great honor of participating as a judge in the effort to maintain our Constitution and the rule of law,” Breyer wrote.
“This is sort of a bittersweet day for me,” said Biden, ticking through Breyer’s accomplishments and reflecting on their decades-long relationship. He called Breyer a “model public servant in a time of great division in this country.”
Kenneth R. Feinberg, a longtime friend of Breyer’s, said many variables went into the justice’s decision to retire at the end of the current term. Feinberg called Breyer a “student of the Senate” from his time as chief counsel to the Senate Judiciary Committee.
“Did he factor in the election and the closeness in the Senate? I think, yes, all of that is a variable,” Feinberg said.
Biden vowed not to sidestep Republicans as he choose a successor, but Psaki warned the White House would resist conservative efforts to preemptively portray the nominee as extreme or question whether a Black woman should be nominated to the court. Some conservative commentators have suggested Biden’s determination to choose a Black woman is discriminatory.
“I think we also … should be clear about some of the games that we’re already seeing indications of out there,” Psaki said. “We have not mentioned a single name. We have not put out a list. The president made very clear he has not made a selection.”
At the same time, Democrats are already taking care to not alienate key Republican senators who could help offer bipartisan cover to any future Biden pick. To that end, Durbin called Collins on Wednesday and assured her that the committee would offer all the materials that the famously studious Collins would need to make up her mind.
But they also plotted on their own, with Senate Judiciary Democrats meeting virtually on Thursday to begin strategizing on next steps. The consensus, according to one person familiar with the call, was that Democrats wanted to move quickly and fairly once Biden puts forward his pick.
Mariana Alfaro and Mike DeBonis contributed to this report.