President Joe Biden said in an interview with “NBC Nightly News” last week that he’s down to “about four people” in his search for a Supreme Court nominee, which raises several questions.
Is he looking at three people? Four people? Three and a half? Who are they?
For all the breathless speculation, the only certain thing is that Biden plans to nominate a Black woman, and that he’s picking from a limited pool of contenders given the scarcity of Black women who have had the opportunity to serve as judges.
One thing is clear, though: Biden gains nothing by picking a centrist nominee in order to win support from Republican senators.
That was the strategy President Barack Obama went with back in 2016 when he picked Merrick Garland to be his Supreme Court nominee. Remember how that went? You could almost hear the gasps of shock and disappointment from Democrats across Capitol Hill hoping for someone more progressive. And then Republicans in the Senate still went ahead and denied Garland a hearing and a vote for nearly a year.
Obama never did get to fill that seat. President Donald Trump did, which was Republicans’ plan all along.
Biden has every reason to pick a Supreme Court nominee with progressive credentials. For starters, he already has the votes in his own party to confirm whoever he picks. Democrats are not going to oppose a historic Black woman nominated to the Supreme Court by their party’s leader. And if past is precedent, most Republicans are going to oppose Biden’s nominee regardless of who it is.
Look no further than the Republican National Committee, which is already feigning outrage over Biden’s nonexistent Supreme Court nominee.
Biden’s nominee isn’t going to change the ideological balance of the court, either. The court is tilted 6-3 in favor of conservative justices, and the president is replacing Justice Stephen Breyer, one of the three Democrat-appointed judges. His nominee is only going to preserve the status quo of Democrats’ minority representation on the court.
It’s also a midterm election year, one in which Democrats are due for losses in the House and potentially in the Senate. If Biden goes with a more progressive Supreme Court pick, it’s something — anything! — his party can use to gin up more excitement among Democrats’ base of supporters.
In his interview last week, Biden said he thinks his pick will get support from some Republicans, and that he’s looking for someone ”with the same kind of capacity” as Breyer — that is, an ”open mind” and a deep understanding of the Constitution.
That could apply to any of the names being floated as potential picks: Ketanji Brown Jackson, a U.S. appeals court judge in Washington, D.C.; Leondra Kruger, a justice on California’s Supreme Court; Michelle Childs, a U.S. district court judge in South Carolina; and Leslie Abrams Gardner, a U.S. district judge in Georgia.
Jackson, 51, appears to be the front-runner. She serves as a judge on the U.S. Court of Appeals for the District of Columbia Circuit — a court that has been a stepping stone for a number of Supreme Court justices — and previously clerked for Breyer. She is a former public defender and has strong support from progressive groups such as Demand Justice.
She also has a record of picking up Republican votes. When the Senate confirmed her last year to her current court seat, three Republicans joined Democrats in supporting her: Sens. Lisa Murkowski (Alaska), Susan Collins (Maine) and Lindsey Graham (S.C.).
And every Republican voted to confirm Jackson to her former U.S. district court seat.
Childs, 55, is suddenly getting a lot of attention in the press, too, but for different reasons. A judge on the U.S. District Court for the District of South Carolina, Childs is benefiting from a bipartisan push by prominent lawmakers in her home state, including Graham and House Majority Whip James Clyburn (D). They are making the case that Childs, who is considered a more centrist nominee, could win a greater number of Republican votes and produce a brief moment of bipartisanship.
“She’s somebody, I think, that could bring the Senate together and probably get more than 60 votes,” Graham said Sunday on ABC’s “This Week with George Stephanopoulos.” “Anyone else would be problematic.”
But Biden gains nothing by appealing to Graham. The president doesn’t need his vote, and Graham has already demonstrated that he doesn’t care about bipartisanship around the Supreme Court process. This is the same senator who denied Obama a Supreme Court nominee in 2016. He also arguably denied another one to Biden in late 2020, when as chair of the Judiciary Committee, he broke from precedent and rushed the confirmation of Trump’s Supreme Court pick even as voting was already underway for the 2020 presidential election that Trump ultimately lost.
Whoever Biden nominates will be qualified and historic. But the idea that he should choose a more moderate nominee because it will foster bipartisanship is rubbish. Just ask his attorney general, Merrick Garland.
