by Anna Augart-Welwood
February 25, 2022
Justice Stephen Breyer, one of three liberal justices, is stepping down after serving for twenty-seven years on the Supreme Court. During his time on the Court, Breyer operated with the belief that interpretation of the US Constitution should not be fixed but instead should change with the times, which opposes the ideas of conservative justices who adhere to the intentions of the writers. Breyer stated, “The reason that I do that is because law in general, I think, grows out of communities of people who have some problems they want to solve.” Following Justice Breyer’s retirement, President Joe Biden must nominate someone, whom he has promised will be a black woman, to fill the vacancy.
President Biden’s ideal nominee should be able to persuade members of the court as well as the public and possess legal skill and integrity. Biden says he is heavily considering four candidates, including Judge J. Michelle Childs from South Carolina, Judge Kentaji Brown Jackson, who used to work as a clerk for Justice Breyer, and Justice Leondra R. Kruger, who worked in the Obama administration and currently serves on the Supreme Court of California. Senator Chris Coons of Delaware, who was present at the meeting in which Biden discussed the nominees, stated that Biden wants “someone in the model of Justice Breyer, someone who will write stirring, compelling, lasting arguments—hopefully in the majority at some point, but probably, in the coming few years, in the dissent.” Biden is planning to reveal his choice by the end of February, after which the nominee must be confirmed.
Nevertheless, the confirmation of a justice is a lengthy process. When there is an open position in the Supreme Court, the President nominates a candidate. The Senate Judiciary Committee then holds a hearing in which the nominee answers questions about their qualifications and beliefs. Then, the Judiciary Committee votes on the nomination and sends its decision to the full Senate. The Senate determines the results of the nomination with fifty-one required votes for or against the nominee, a change implemented in 2017 that allowed Trump to appoint three Justices. In the event of a tie in the nomination, the Vice President will cast the conclusive vote. The Senate is currently split 50-50 between Democrats and Republicans. Assuming all Democratic senators vote in favor of the nominee or gain support from some Republican senators, Vice President Kamala Harris will have to break a tie vote. The illness or death of even one Democrat on the Senate could cause the party to lose their majority, and then Biden’s nominee might not be confirmed.
Regardless of whom Biden chooses, the first black female Supreme Court Justice is an important step in diversifying leadership and government in the United States. However, this nomination is only the beginning; there are many qualified black female judges and, hopefully, more will soon be given the chance to serve on the Supreme Court.
Detrow, Scott. “Biden Says He’s Done a ‘Deep Dive’ on 4 Supreme Court Candidates.” NPR, February 10, 2022.
Georgetown Law Library. “Supreme Court Nominations Research Guide: Nomination & Confirmation Process.” Accessed February 18, 2022.
Hulse, Carl. “Here’s Why Republicans Can’t Filibuster President Biden’s Supreme Court Nominee.” The New York Times, January 26, 2022.
Hulse, Carl and Katie Rogers. “Biden, a Veteran of Supreme Court Fights, Ponders His Own Historic Pick.” The New York Times, February 12, 2022.
Williams, Pete. “Justice Stephen Breyer to Retire from Supreme Court, Paving Way for Biden Appointment.” NBC News, January 27, 2022.