US President Joe Biden.
Saul Loeb/AFP via Getty Images
- The Senate confirmed 40 of Joe Biden’s judicial nominees in his first year in office, the most since Reagan.
- Biden is a former senator who oversaw the judiciary committee and he knows how to do this.
- The frontrunner to succeed Breyer also had Republican support for her 2013 and 2021 judicial appointments.
The moment progressives have been waiting for is finally here: Supreme Court Justice Stephen Breyer is retiring from the bench, and President Joe Biden has the chance to appoint a successor.
It’s an enormous opportunity for Democrats who are reeling from years of failure and disappointment at the Supreme Court, from the collapse of Merrick Garland’s nomination in 2016 to the death of Justice Ruth Bader Ginsburg in 2020.
Now, Democrats have a 50-50 majority in the Senate including Vice President Kamala Harris’ tie-breaking vote. And the president is himself a Senate veteran who oversaw the judiciary committee. In other words, Biden knows how to do this.
So far he’s been remarkably effective at pushing through judicial appointments. In his first year in office, he’s had 40 nominees confirmed to the federal bench. That’s more than any president since Ronald Reagan: Bill Clinton and George W. Bush each got 23 appointments their first year, Barack Obama secured 13, and Donald Trump got 19.
Biden has also had little trouble achieving his goals of diversfying the federal judiciary. According to a recent report from the Alliance for Justice, before Biden took office, women of color made up 20% of the US population but just 4% of sitting federal judges.
Almost half of Biden’s nominees and more than half of all his women nominees are women of color, the report said. Biden also pledged during the 2020 presidential campaign that he would appoint a Black woman to the Supreme Court, a point several progressives raised after news of Breyer’s upcoming retirement broke.
While some Democrats worry about the possibility of a long and arduous Senate confirmation process for Breyer’s successor, those fears may be overblown.
Biden hasn’t been reckless with his nominations so far, and Breyer’s exit has been floated for so long that the president has had a list of successors waiting in the wings for a while. He also stands to gain very little lengthening the interview process for potential successors.
Progressives have also worried that Democratic Sens. Joe Manchin and Kyrsten Sinema, who have consistently been the biggest thorn in Biden’s side and are currently torpedoing his economic agenda, will put up roadblocks for Breyer’s successor.
But that’s also highly unlikely; neither Manchin nor Sinema have ever voted against a Biden judicial nominee.
Overall, if Biden follows the same playbook in shepherding through a Supreme Court pick that he did on his lower court nominees, the result is a fairly painless nomination of someone like US appeals court judge Ketanji Brown Jackson or California Supreme Court justice Leondra Kruger, both of whom are believed to be the leading contenders to replace Breyer, followed by a swift Senate confirmation process.
Jackson, 51, formerly clerked for Breyer and was appointed in 2013 to a federal trial court in Washington, DC, by Obama. Last year, she was confirmed to the US Court of Appeals for the DC Circuit, which is widely considered to be the second most powerful court in the country. Jackson enjoyed Republican support during both confirmations.
Mike Davis, a former Republican Senate aide who was instrumental in pushing through Trump’s judicial nominees, told Insider’s C. Ryan Barber and Camila DeChalus that he thinks the appeals court judge is “far and away the leading contender.”
He added that the timing of Breyer’s retirement also plays in Jackson’s favor because if nominated for the high court, Jackson will go into it having served on the DC circuit court for a year, nullifying any suggestions that she isn’t prepared for the job.
