How to follow the Supreme Court nomination process
President Biden has said that by the end of February he expects to name his first nominee to the U.S. Supreme Court to replace retiring liberal Justice Stephen Breyer. Biden has committed to appointing the first Black woman to the high court and is reportedly considering more than a dozen candidates.
The Supreme Court, although occasionally opaque in its decision making, is an immensely powerful institution and shapes many of the laws that affect everyday lives, from COVID protocols to abortion rights.
But what does the nomination and confirmation process look like? Who are some of the frontrunners? What will the impact be on future Supreme Court decisions?
Adam White, co-director of George Mason University's C. Boyden Gray Center for the Study of the Administrative State and senior fellow at the American Enterprise Institute, explains why this is a big deal, how it could play out politically and who some of the frontrunners could be. (The interview has been shortened and edited for clarity.)
Yahoo News: Why does President Biden’s nomination of a Supreme Court justice matter?
Adam White: The appointment of a Supreme Court justice is one of the most important, consequential acts a president takes in his presidency. Some presidents only get to appoint maybe one justice at all. President Trump, obviously, had three in one term [Neil Gorsuch in 2017, Brett Kavanaugh in 2018 and Amy Coney Barrett in 2020]. That's very rare. So the opportunity comes along only rarely for a president.
The Supreme Court decides cases every year of the utmost importance. Right now the court is considering an issue on abortion [Dobbs v. Jackson Women's Health Organization]. Soon, next year, they'll hear cases involving the issue of affirmative action [challenges to race-based admission policies at Harvard and the University of North Carolina]. So it's some of the most important work that our government does, and some of the most important work that the president does in appointing a justice.
Who are some of the frontrunners?
Because President Biden committed, as a candidate [and as president on Jan. 27, 2022], to appoint a Black woman to the Supreme Court, news of an upcoming vacancy focused the public's attention on a small number of prospective justices who are Black women.
The main frontrunner, as far as we can tell, has been a judge on the D.C. Circuit named Ketanji Brown Jackson. She served on the D.C. Circuit for a short time, the D.C. Circuit being, perhaps, the second most important federal court in the country. It hears a lot of constitutional and regulatory issues.
Before she joined that court last year, she served as a trial judge for nearly a decade in Washington, D.C. Before that, she worked on sentencing issues, and she was a public defender. So she certainly comes to, perhaps, the Supreme Court with a background primarily in criminal law. That would be an interesting addition to the court.
Another apparent frontrunner is a justice on the California Supreme Court, Justice Leondra Kruger. She previously served in Washington, D.C., and the Justice Department during the presidency of President Obama. She's a very well-respected judge in Democratic and progressive circles. She's served on the California Supreme Court now for a few years. Justice Kruger is only in her mid-40s right now. So she'd be an exceptionally young candidate for the Supreme Court. And if she were to be appointed by President Biden, she might serve on the court for a very, very long time.
A third name that we've seen in the press is Judge J. Michelle Childs. She's a federal trial judge in South Carolina. She's a protégée of Congressman [James] Clyburn, who of course has been a key political advocate for President Biden. She's currently being nominated to the U.S. Court of Appeals for the D.C. Circuit, a very important job in its own right. But she's attracted some attention as a possible Supreme Court nominee. It wouldn't be hard for President Biden to just shift her nomination over to a Supreme Court nomination.
What happens after President Biden announces a Supreme Court nominee?
Once the president picks his nominee for the Supreme Court, there's a process, ahead of the Senate's actual confirmation hearings, where the nominee is just going to go and meet with senators — meet one-on-one with Democratic and probably Republican senators alike, just to introduce herself to the people who will be voting for or against her someday.
Now, this didn't happen during the last appointment to the court, Amy Coney Barrett, because we were in the middle of the first year of COVID-19.
But I wouldn't be surprised if, for this nomination, we go back to the tradition of the nominee meeting with senators. And when that happens, it's usually done with the assistance and guidance of somebody who knows Capitol Hill well. This person is often referred to as the “sherpa,” the person who's gonna guide them through the rocky terrain of the Senate and the Senate confirmation process.
[The Biden administration will tap former Sen. Doug Jones, D-Ala., to guide the nominee through the confirmation process.]
Is the White House weighing a nominee who will get the most Republican votes — or who will appeal to the Democratic base?
Since a president only gets a few or maybe only one opportunity to appoint a Supreme Court justice, it's a politically fraught moment because it energizes the president's political base. They're very excited to see the president get to appoint a Supreme Court justice. But of course, at the same time, the president has to get that nominee confirmed by the Senate, and President Biden right now has the slimmest possible majority in the Senate, 50-50, with the tie-breaking vote with the vice president. So there's no margin for error.
Democrats are down one senator right now because Sen. [Ben Ray] Luján [of New Mexico] is out recovering from a stroke and will be back eventually, but not quite right away. There is some time to spare, of course, because the Senate Judiciary Committee will have its entire review process and hearings. And that will take a few weeks from now, before the nomination reaches the full Senate for a final vote. But to the extent that [Luján’s] recovery is a little delayed and needs a little bit more time, this could push back the timeline for a confirmation by a couple extra weeks.
And, of course, with elections coming up, a lot of even Democratic senators in red or purple states have to think very, very hard about whether they vote in favor or against the president's nominee. So the president has to keep his entire Democratic base together and hopefully attract one or two Republican votes.
I honestly don't know which way that would cut for the three frontrunning candidates whose names we're seeing in the press, but surely the White House is spending a lot of time thinking about this. But at the same time, they're also surely thinking about who would just be the best Supreme Court justice at this moment in time.
How will this newly appointed justice affect the U.S. Supreme Court?
We should all keep in mind that one new Supreme Court appointment won't radically change the Supreme Court, at least not at this moment. This is, after all, President Biden appointing somebody to succeed Justice Breyer, who was a progressive justice appointed by President Clinton. So this won't result in a big ideological change in the court.
The court still is split, roughly 6-3, with Republican-appointed justices versus Democratic-appointed justices. By and large, this is and remains a conservative court.
They've already heard some important cases this term. We're about halfway through the court's work right now. They've heard oral argument in cases involving abortion, other cases involving COVID-19 vaccine mandates. They'll soon hear a major case involving the EPA’s claimed power to regulate greenhouse gas emissions. All of those cases will be decided, almost certainly, before the next justice joins the court in the fall.
But there is one big case out there on the horizon, awaiting the next justice for the fall. That's the constitutional challenges to Harvard and University of North Carolina's policies of affirmative action or race-based admissions policies. That it is the most important case awaiting the next justice.