The withdrawal of a Supreme Court judge allows Biden’s first nomination
Correspondent in New York
Stephen Breyer, judge of the progressive wing of the US Supreme Court, will leave the main body of the judiciary when his current period of sessions ends, next October. The withdrawal of Breyer, 83, will not change the ideological line of the high court -with a clear conservative majority-, but it will allow the US president, Joe Biden, to place a new magistrate also of a progressive nature.
The power to nominate Supreme Court judges rests with the president, but it is the Senate that must confirm the nominated candidate. Biden now has on his side that the majority of the Senate is, albeit minimally, Democrat: there are 50 legislators from his party and another 50 Republicans, but the tie is broken by the president of the Upper House, who is the vice president of the country, Kamala Harris.
That short advantage of the Democrats could vanish in the legislative elections next fall, in which a third of the Senate will be renewed. Hence the convenience for the Democrats of Breyer withdrawing before the Republicans have a chance to take control of the confirmation and demand from Biden a candidate more to their liking.
Breyer’s goodbye will open the door to a historic nomination: Biden promised in the campaign that took him to the White House that his first nomination for the Supreme Court would be a black minority woman. In the court’s 232-year history, there have been two judges – Thurgood Marshall and Clarence Thomas, who remains in office – and five women, including three current justices: Sonia Sotomayor, Elena Kagan and Amy Coney Barrett.
Biden’s nominee will be the first black female judge on the Supreme Court and the favorites for the nomination are Ketanji Brown Jackson, who is part of the federal appellate body from which Supreme Court justices are usually chosen, and Leondra Kruger, Supreme Court Justice of California who has appeared before the high court as the state’s attorney.
Breyer is seen as a pragmatic moderate, inclined to seek compromise with the conservative wing of the court. It is not clear that his successor will follow that moderate line, since it is possible that Biden will seek a clearly progressive profile now that he has control of the Senate to compensate for the conservative ideological line.
His predecessor, Donald Trump, had the opportunity to nominate and place three conservative justices on the bench: Neil Gorsuch -after the Republicans in the Senate used their majority in 2016 to block the nomination of Barack Obama, that of the current attorney general, Merrick Garland-, Brett Kavanaugh -after the withdrawal of Judge Anthony Kennedy- and Barrett, after the death of Ruth Bader Ginsburg, the judicial totem of the Democrats.
After Trump’s presidency, there are six judges nominated by Republican presidents – one of them, John Roberts, sometimes joins the progressive minority – and only three chosen by Democrats.
Biden and the Democrats have sought to avoid a case similar to the Ginsburg succession. When Obama was in the final stretch of his second term, with Ginsburg over 80 years old and with various medical conditions behind him, the magistrate was pressured to leave office. That would have made it possible for Obama to choose a progressive candidate. Ginsburg, like so many others, never believed Trump would have a chance of winning the 2016 election before Hillary Clinton. He was wrong and passed away just two months before Trump lost his re-election to Biden. It was enough time for the New York billionaire to nominate a conservative judge and the Senate -under Republican control- to confirm her at full speed.
Breyer has come under immense pressure to prevent a repeat of the case and to allow Biden to nominate with a Senate, in principle, in his favor. Because the Democrats have a majority in the upper house, but it is so small that they cannot afford any defections. And in their ranks there are two fractious moderates -Joe Manchin and Krysten Sinema- who have shown that their pulse has not wavered to contain Biden’s most leftist agenda, such as the multimillion-dollar socio-climatic spending plan.
The composition of the Supreme Court is of paramount importance in the US It is the ultimate arbiter of the constitution and its impact on a highly case-based legal system is central. In the coming years, the court could define central aspects of American society, such as the right to abortion, access to the vote, the regulation of firearms, discrimination based on sexual orientation, or even the contestation of electoral results in a moment of maximum political polarization.