President Biden called Senate Minority Leader Mitch McConnell to discuss his upcoming Supreme Court nomination. He hosted the top Republican on the Senate Judiciary Committee and asked him, along with the Democratic chairman, to suggest potential justices. And top White House aides began reaching out to GOP senators to seek their input.
Together, those actions Tuesday launched Biden’s effort to project at least a veneer of bipartisan consultation as he sets out to make his first pick to the Supreme Court, replacing Justice Stephen G. Breyer. The White House is hoping to smooth the way for Biden’s upcoming choice even though the Senate in recent years has been an increasingly vicious battleground for such nominations.
Biden, who served in the Senate for 36 years, has known many of the key senators for decades, and the confirmation battle will be the latest test of whether his self-proclaimed ability to navigate the Senate can overcome the chamber’s polarization.
Although Democratic senators, if all are present, would not need Republicans to confirm Biden’s eventual nominee, administration officials are working assiduously to ensure his pick does not become only the second Supreme Court justice in well over a century to be confirmed without bipartisan support. The Senate is split 50-50, with Vice President Harris empowered to break ties.
“The Constitution says ‘advice and consent,’” Biden said in brief remarks in the Oval Office before meeting with Senate Judiciary Committee Chair Richard J. Durbin, an Illinois Democrat, and Sen. Charles E. Grassley of Iowa, the committee’s senior Republican. “And I’m serious when I say it, that I want the advice of the Senate as well as the consent, if we can arrive on who the nominee should be.”
In a nod to his long Senate tenure, Biden said of Durbin and Grassley, “I invited — we’re different parties — but two good friends down here.” Biden was a member of the Judiciary Committee for many years, serving as chairman from 1987 to 1995.
During the meeting, Biden told the senators that after the nomination is submitted, he wants to see his Supreme Court pick approved in about 40 days, Durbin said. A person briefed on the conversation later offered clarification, saying Biden was actually referring to the roughly 40 days or so from nomination to a hearing.
While he did not rattle off a list of contenders, Biden stressed that he wanted to work with Democrats and Republicans and asked both Durbin and Grassley for recommendations of women to consider for the vacancy. The president has committed to nominating the first Black woman to the Supreme Court.
Grassley, who led the Judiciary Committee when Senate Republicans confirmed two of President Donald Trump’s three Supreme Court nominees, did not indicate whether he would make such suggestions to the White House, but said, “I had a chance to tell him that I want somebody that’s going to interpret law, not make law.”
In describing his call with Biden on Tuesday afternoon, McConnell’s office said the Senate minority leader “believes the cornerstone of a nominee’s judicial philosophy should be a commitment to originalism and textualism.”
“He emphasized the importance of a nominee who believes in judicial independence and will resist all efforts by politicians to bully the court or to change the structure of the judicial system,” the Kentucky Republican’s office said.
McConnell has repeatedly praised Breyer for rejecting proposals from liberals to restructure the Supreme Court, particularly by expanding the number of justices who sit on it. Liberals are angry at McConnell for blocking the Senate from considering President Barack Obama’s pick to replace Justice Antonin Scalia and then pushing through the confirmation of Amy Coney Barrett just over a week before the 2020 election.
Biden has promised to select his nominee by the end of this month. Among the leading candidates for the vacancy are Judge Ketanji Brown Jackson, who sits on the U.S. Court of Appeals for the D.C. Circuit; Leondra Kruger, a California Supreme Court justice; and Judge J. Michelle Childs, a federal district court judge in South Carolina who has been tapped for the D.C. Circuit.
The White House has said Biden is not limiting his options to three names and is also considering other jurists who sit on state Supreme Courts and in federal districts throughout the country.
Sen. Lindsey O. Graham (R-S.C.), who has been public about his enthusiasm for Childs — a resident of his home state — said he was expecting a call from the White House on Tuesday afternoon to talk about the vacancy.
“They’re doing good,” Graham said of the White House consultation efforts. “I just think that’s the way it should work.”
The topic of the Supreme Court also surfaced during a phone conversation between Sen. Susan Collins (R-Maine) and presidential counselor Steve Ricchetti over the weekend, the senator said, although the call was primarily on Collins’s negotiations to revise the Electoral Count Act.
Separately, McConnell hosted the 11 GOP senators on the Judiciary Committee for a strategy session at midday Tuesday, and Republicans left the meeting promising that Biden’s pick would get fair consideration.
The administration is making plans to pull together an outside team of advisers to guide the nominee through the labyrinthine processes — as well as the hallways — of Capitol Hill, tapping former senator Doug Jones (D-Ala.) to lead the effort.
The selection of Jones, a longtime Biden ally and previously a finalist to serve as attorney general, was first reported by the New York Times and confirmed by a person familiar with the decision. The White House declined to comment.
Republicans said Jones would be well received on Capitol Hill.
“He wasn’t here for long, but I think for the amount of time that he was here, he had good relationships with both sides of the aisle and is somebody I think … people would be willing to have an open-door policy with,” said Sen. John Thune (S.D.), the second-ranking Senate Republican.
Still, any White House efforts to turn down the partisan heat on the confirmation process would involve bucking a long-term trend.
In 1993, Ruth Bader Ginsburg was confirmed 96 to 3 with only three Republicans dissenting, and in 2005, John G. Roberts Jr. was confirmed 78 to 22 as chief justice, with half the Democrats joining all Republicans in supporting him.
In contrast, Barrett, the court’s most recent justice, was approved on an almost strictly party-line vote in 2020. All Democrats opposed Barrett, and all Republicans supported her except Collins, who expressed reservations about the process.
And the White House is tangling with some Senate Republicans. Sen. Ted Cruz (R-Tex.) called Biden’s pledge to nominate the court’s first Black woman an “offensive” promise that disregards 94 percent of the population, prompting White House press secretary Jen Psaki to respond that the senator “had no objection to Donald Trump promising he’d nominate a woman in 2020.” She noted that Cruz told Barrett during her confirmation hearing that she was “an amazing role model for little girls.”
Tyler Pager contributed to this report.