U.S. President Joe Biden said Thursday that he will keep his campaign promise by nominating the first-ever Black, female justice to a lifetime seat on the U.S. Supreme Court following the retirement of liberal Justice Stephen Breyer.
"The person I will nominate will be someone with extraordinary qualifications, character, experience and integrity,” Biden said, standing alongside Breyer, who confirmed Thursday that he will step down after 28 years on the bench. ”And that person will be the first Black woman ever nominated to the United States Supreme Court. It's long overdue, in my view."
Biden said he had not yet made a choice. He said he will announce his nominee before the end of February, and that he will work with congressional leaders in the deeply divided legislature – currently cleaved in half along partisan lines, with Vice President Kamala Harris as a critical tie-breaking vote – to see her confirmed promptly.
“We have not mentioned a single name,” White House press secretary Jen Psaki said Thursday. “We have not put out a list.”
Naming a justice is perhaps one of the most consequential – and sometimes, controversial – actions an American president can take. The powerful and well-respected nine-member court has the final say on the constitutionality of the actions of the administration, Congress, and the states.
Biden could face time pressure to install a successor before congressional elections in November. If Republicans retake the Senate, the president will have a much harder time getting his nominee confirmed.
This is Biden’s first opportunity to name a justice. Former President Barack Obama appointed two liberal justices during his two terms. He left office with a vacant seat on the court, as Republicans blocked his third pick, now Attorney General Merrick Garland. During his administration, Republican Donald Trump appointed three conservative justices.
Breyer, who has served on the court since 1994, says he will retire after the court stops for summer recess, which usually happens in late June or early July.
While Biden and his administration have been careful not to speak the name of any potential candidate – who include two well-regarded D.C. circuit judges – he spoke of the characteristics that made Breyer special, and the challenges his successor may face.
“Everyone knows that Stephen Breyer has been an exemplary justice: fair to the party before him. Courteous to his colleagues. Careful in his reasoning,” Biden said. “He's written landmark opinions on topics ranging from reproductive rights to health care.”
Biden will get at most one or two Republican votes if he picks a moderate judge, said Adam White, a senior Fellow at the American Enterprise Institute.
“But the Democratic coalition does not want a moderate judge,” he said. “They want somebody who's very strongly committed on certain issues, including criminal justice and other things. Further complicating this is the fact that President Biden pre-committed on the campaign trail to appointing the first Black woman to the Supreme Court. So his pool of potential nominees is limited by that as well.”
Breyer, in his retirement speech, said he remains hopeful about what he described as the experiment of American democracy.
“It's that next generation, and the one after that, my grandchildren and their children, they'll determine whether the experiment still works,” said Breyer, who is 83. “And of course, I'm an optimist, and I'm pretty sure it will.”