Biden commits to nominating nation’s first Black female Supreme Court justice as he honors retiring Breyer
By Kate Sullivan, Ariane de Vogue, Betsy Klein, MJ Lee and Maegan Vazquez, CNN
President Joe Biden committed to nominating the nation’s first Black female Supreme Court justice, as he honored retiring Supreme Court Justice Stephen Breyer at the White House on Thursday.
“The person I will nominate will be someone with extraordinary qualifications, character, experience and integrity. And that person will be the first Black woman ever nominated to the United States Supreme Court,” Biden said. “It’s long overdue in my view. I made that commitment during the campaign for president, and I will keep that commitment.”
Breyer’s departure from the court gives the President his first opportunity to select a Supreme Court justice — a consequential choice that will make history, shape Biden’s presidential legacy for decades to come and give Democrats the chance to claim a much-needed political victory ahead of the 2022 midterm elections.
Biden said during Thursday’s ceremony in the Roosevelt Room that he expects to choose a nominee before the end of February. The President said the selection process will be “rigorous,” and that he will “select a nominee worthy of Justice Breyer’s legacy of excellence and decency.”
Though a nominee has not been selected, Breyer’s replacement is widely expected be a younger, liberal judge who could serve on the court for decades. The confirmation would not alter the Supreme Court’s ideological balance — the court has six conservative justices appointed by Republican presidents and three liberals appointed by Democrats.
In remarks from the White House, Biden — with Breyer by his side — said the justice’s retirement was “bittersweet” and noted that their friendship stretches back 40 years.
The President expressed his gratitude for Breyer’s career in public service “and his clear-eyed commitment to making our nation’s laws work for its people,” adding that the justice “has patiently sought common ground and built consensus, seeking to bring the court together.”
“I think he’s a model public servant at a time of great division in this country,” Biden continued. “Justice Breyer’s been everything his country could have asked of him.”
Biden was the Senate Judiciary Committee Chairman who presided over Breyer’s confirmation hearings when he was nominated to the Supreme Court in 1994.
The President said: “We were joking with one another when he walked in — did we ever think he’d have served decades on the court and I’d be President of the United States the day he came in to retire?”
In a brief speech that recounted historical figures from the nation’s past, including Abraham Lincoln and George Washington, Breyer thanked the President, reflected on his time on the high court and expressed optimism about the future of the country.
“This is a complicated country. There are more than 330 million people, and my mother used to say it’s every race, it’s every religion — and she would emphasize this — and it’s every point of view possible,” Breyer said.
He continued: “And it’s a kind of miracle when you sit there and see all those people in front of you. People that are so different in what they think. And yet they’ve decided to help solve their major differences under law.”
Breyer’s exit decision
Breyer, who is 83, has faced intense pressure from the left to retire while Democrats have a clear path to confirm his replacement.
He informed the White House of his decision to retire last week, two sources familiar with the conversation told CNN. But he informed his colleagues on the Supreme Court of his retirement plans after the news broke on Wednesday, a source familiar with the discussions tells CNN.
Breyer told some of the justices in person and some on the phone, the source said. And he told at least one colleague he hadn’t wanted them to learn of his retirement through media reports, according to another source familiar with the matter.
The retiring justice hand-delivered a letter to Biden on Thursday morning to formally notify the President of his intent to leave at the end of this year’s Supreme Court term. Breyer told Biden in the letter that he had decided to retire at the end of the term “assuming that by then my successor has been nominated and confirmed.”
“I enormously appreciate the privilege of serving as part of the federal judicial system — nearly 14 years as a Court of Appeals Judge and nearly 28 years as a Member of the Supreme Court,” he said, and added that the work has been “challenging and meaningful.”
Breyer said that his relations “with each of my colleagues have been warm and friendly” and that he has been aware “throughout” of the “great honor of participating as a judge in the effort to maintain our Constitution and the rule of law.” The letter was dated January 27.
What comes next
White House press secretary Jen Psaki said Thursday that the President has been reviewing prospective nominees “since last year” in preparation for a Supreme Court opening.
Moving forward, she said, Biden will work with a central group of internal and external advisers, as well as Vice President Kamala Harris, to finalize a nominee.
Harris, a former attorney general of California and a former member of the Senate Judiciary Committee, will play a “central role” in deliberations, according to Psaki. And along with White House advisers, Psaki said the administration intends to bring in outside expertise. The White House, she said, will be consulting with “a range of groups” on the nomination, though it’s not clear which groups that will include.
Biden’s team is expected to begin reaching out to and potentially meeting with potential Supreme Court nominees as soon as next week, a source familiar with the process told CNN. The White House will likely work from a list of 10 or fewer people and isn’t expected to produce a formal list.
The meetings next week are expected to be at the staff level before the President eventually sits down with them.
Given Breyer made clear in the letter he hand-delivered to Biden that he intends to stay on through the end of the term, the White House does not see a need to sign on to the 30-day confirmation timeline proposed by Senate Majority Leader Chuck Schumer. The source said the administration would be fine if the process takes longer than that of Justice Amy Coney Barrett and instead mirrors the duration of a typical confirmation.
Schumer on Wednesday vowed that whoever Biden nominates for the court will be confirmed with “all deliberate speed.” But some Republicans have already signaled they’re ready to push back — even before a nomination has been formalized.
After Senate Minority Mitch McConnell issued a statement warning Biden against “outsourcing” his decision on a replacement to the “radical left,” Psaki suggested some Republicans’ recent statements have “obliterated their own credibility.”
“I think we should be clear about some of the games that we’re already seeing indications of out there. We have not mentioned a single name, we have not put out a list. The President has made very clear that he has not made a selection,” Psaki said. “If anyone is saying that they plan to characterize whoever he nominates, after thorough consideration with both parties, as ‘radical’ before they know literally anything about who she is, they just obliterated their own credibility.”
She added that the President plans to work with members of both parties “in good faith.”
“Our intention is to not play games. The President’s intention is to consult with members of both parties. And his intention is to nominate a qualified candidate who after completing a rigorous is worthy of the excellence and decency of Breyer’s legacy,” she continued.
Biden will have to nominate someone who can safely get 50 votes in the Senate, as Democrats currently hold only the most narrow of majorities in the chamber. The President hopes a swift process will lead to a confirmed justice by spring.
Well before Breyer’s retirement plans became public, a short list of potential nominees had been circulating Washington and officials in the White House Counsel’s Office have built files on various candidates in anticipation of a potential vacancy.
Names on the list include: DC Circuit Judge Ketanji Brown Jackson, California Supreme Court Justice Leondra Kruger, South Carolina US District Judge J. Michelle Childs, North Carolina Supreme Court Associate Justice Anita Earls, Minnesota US District Judge Wilhelmina “Mimi” Wright, Circuit Judge Eunice Lee, Circuit Judge Candace Jackson-Akiwumi and Sherrilyn Ifill, a civil rights attorney who recently announced plans to step down from her role as president and director-counsel of the NAACP Legal Defense and Educational Fund.
Biden first made the commitment to nominate a Black woman to the Supreme Court in South Carolina — a key battleground state where Black voters make up a sizable portion of the electorate. The pledge helped Biden secure key endorsements, including from House Majority Whip James Clyburn, a South Carolina Democrat. Clyburn’s endorsement is largely credited with giving Biden’s struggling campaign the boost it needed to win the South Carolina primary, which put him on the path to win the Democratic nomination.
Clyburn told CNN’s Anderson Cooper on Wednesday night that he is pushing for Biden to nominate South Carolina US District Judge J. Michelle Childs.
Civil rights leaders pleased Biden keeps to commitment
Civil rights leaders outside of the government told CNN that Biden had often reiterated his pledge to nominate a Black woman in private conversations.
The Rev. Al Sharpton said he recalls that in at least one private setting since Biden took office, the President made clear to Sharpton his commitment to his pledge of appointing a Black woman to the bench.
“He brought it up that … he’s going to keep his word if the opening comes up,” Sharpton said.
Sharpton, who said he has already reached out to the White House since the news of Breyer’s retirement broke on Wednesday, emphasized that the impending historic nomination does not make up for the stalled voting rights legislation sitting in the Senate. He said he planned to push the White House to keep pushing on those bills.
“We’re glad to have a Black woman on the bench that’s qualified but that doesn’t mitigate voting rights,” he said. “Voting rights and police reform must be dealt with. They’ve not checked the box.”
Biden’s campaign promise to nominate a Black woman to the high court was a “bold commitment,” said Marc Morial, the president of the National Urban League, adding that he has not questioned whether the President would ultimately keep it. Morial said he feels the White House must move with speed through the confirmation process.
Both Sharpton and Morial told CNN that for now, they did not plan to publicly make an endorsement of any candidate, saying that the President should be given space to come to what will ultimately be his final decision.
“It is fair he should be given room to make the selection as long as she is qualified,” Sharpton said. “As long as he keeps his word, we should not get into an internal fight on which one of the picks, when we’ve never had a black woman. We should not undo what could be a great moment.”
Morial echoed that it would be “counter-productive to get into the game of speculation because many of the names that had been recommended are acceptable.”
“I’m not recommending anyone at this time because I think that the President should be given the prerogative to make a decision,” he added.
This story has been updated with additional information.
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CNN’s Kaitlan Collins and Sam Fossum contributed to this report.
