When Ruth Bader Ginsburg did not step down from the Supreme Court during Barack Obama’s presidency, she cost her party a seat in the Supreme Court. Justice Stephen Breyer won’t make that same mistake.
He announced on January 26th that he would step down from the Supreme Court at the end of the current term. Breyer had a 27-year Court career,in which he made notable rulings on everything from abortion to healthcare. Breyer’s retirement opens up a seat in the Court and affords President Joe Biden an opportunity to capitalize on the open Supreme Court seat, but his retirement also shines a light on the outdated and fundamentally flawed Supreme Court nomination process.
Legislatively, Democrats can’t seem to come together on the president’s monumental piece of legislation, his “Build Back Better” plan, so an inability to pass a Supreme Court nominee would show dysfunction in the Democratic ranks.
In wake of Breyer’s retirement, President Biden announced that he would nominate the first Black woman to the Supreme Court, a move attempting to regain some recently lost support in the Black community and fulfill a campaign promise. The president is in desperate need of a boost, with his approval rating down fourteen points since the beginning of his presidency. While surveying his options for the open seat, the president and his Democratic colleagues will have a couple of things in mind, which greatly diminish the integrity of the selection process. Legislatively, Democrats can’t seem to come together on the president’s monumental piece of legislation, his “Build Back Better” plan, so an inability to pass a Supreme Court nominee would show dysfunction in the Democratic ranks.
It’s important to realize that President Biden and the Senate Majority leader will have a tough job on their hands as they attempt to satisfy all 50 Democratic Senators; without one of them, a nominee’s confirmation will likely fail, but there is also the possibility that moderate Republican Senators see this confirmation as a chance for a sliver of bipartisanship. Whether Republican Senators vote for the nominee or not, it is imperative the nominee does not alienate progressive and centrist Democratic Senators alike.
When assessing the candidates for the open seat, the primary attribute Biden looks for is age. Considering the Supreme Court has a lifetime appointment, anyone nominated by a sitting president and confirmed by the Senate serves until retirement or death. The President has no reason not to nominate someone who could serve on the court for 30 or more years; he’s a liberal politician and will attempt to put a liberal justice on the court that will outlive his presidency.
Something that came up during the 2020 campaign and has been an ongoing discussion between Court-watchers is the fact that the Supreme Court is in desperate need of perspectives other than those of white men. Of the 115 justices to have served on the court, only seven have not been white men.
While I agree with the fact that the Supreme Court is in depserate need of more perspectives, Joe Biden’s announcement that he would be nominating a Black woman is purely for optics.
While I agree with the fact that the Supreme Court is in desperate need of more perspectives, Joe Biden’s announcement that he would be nominating a Black woman is purely for optics. Furthermore, it lends credence to the lackluster and frankly bigoted arguments that will be levied towards the eventual nominee. Biden’s announcement makes it seem like the nominee’s credentials cannot stand on their own. Instead of just announcing his nominee and having the added bonus that she represents a minority and new perspective on the court, he opened up the potential nominee and his party to bad faith but optically effective criticism.
No matter whom the president nominates, this narrative will surround the candidate; this issue was entirely avoidable.