Justice Stephen G. Breyer has announced his retirement from the Supreme Court, leading to the much hoped for opportunity for President Biden to nominate a new Justice. There has been a lot of focus on the president’s reiteration that he will nominate a Black woman to the Supreme Court. This is a campaign promise the president has been presented with the chance to fulfill. With a simple majority held by Democrats in the Senate, confirmation is a possibility — although a precarious one.
The announcement that Biden would nominate a Black woman as a candidate was met with much attention. Biden’s statement was both lauded and condemned. Most notably, Republican Senator Ted Cruz said, “The fact that he’s willing to make a promise at the outset, that it must be a Black woman, I got to say that’s offensive. You know, Black women are what, 6% of the U.S. population? He’s saying to 94% of Americans, ‘I don’t give a damn about you, you are ineligible.’” This statement is ironic as eligibility for the Supreme Court historically meant that one had to be a white male. Altogether, the senator’s comments are an echo of most Republican opinions on Biden’s commitment.
Focusing on possible candidates, there are three major contenders that the media has speculated on or that the White House has been confirmed to be looking into. Ketanji Brown Jackson, a judge on the U.S. Court of Appeals for the D.C. Circuit, and Leondra R. Kruger, a justice on the California Supreme Court, are both the considered top candidates for the nomination. Additionally, J. Michelle Childs, a Federal District Court judge in South Carolina, was confirmed as under consideration by the White House. Nonetheless, if Biden manages to pull every Democratic senator together, Republican support would not be necessary. This nomination could go through along party lines as Justice Amy Coney Barret’s confirmation did. Furthermore, while Republicans are against Biden’s promise to nominate a Black woman, they are not necessarily opposed to the candidates themselves.
The pick will not change the overall makeup of the Supreme Court as Justice Breyer was a liberal-minded judge and will be replaced with another liberal-minded judge. Some are concerned that the Supreme Court is becoming more of a political entity than a judicial and nonpartisan one. With the growing polarization in America, this is not an unfounded concern as is the concept of packing the courts, which has been very concerning to politicians on both sides of the aisle. A report released in December by a bipartisan commission looking into possible packing of the court indicated that there was “profound disagreement” and that they were unable to come to a singular conclusion. This issue is far from settled and being completely eliminated, so further deliberation and debate on this issue can be considered a certainty. As politics presently appears to be fundamentally adherent to party divides and the imbalance of conservative and liberal judges on the bench, there is no end in sight for this controversy.
