President Donald Trump and former Senate Majority Leader Mitch McConnell created a new formula for Supreme Court appointments that assures Democrats will win.
President Biden has an opportunity to shape the future of jurisprudence by appointing the first black woman to the Supreme Court after Justice Stephen Breyer announced his retirement this summer.
When President Barack Obama nominated Decide Sonia Sotomayor to the Supreme Court in 2009, our staff escorted her thru the Senate corridors for courtesy contacts with 89 senators, most of whom withheld their votes until the Judiciary Committee vetted and questioned her. They couldn’t assess her health to serve in court until that process was completed.
So long. Mr. Biden should not take a look at our Sotomayor nomination process. Instead, he should turn to Justice Amy Coney Barrett’s nomination and confirmation.
Under Mr. Trump, conservatives reduced the Supreme Court nomination process to pure politics. It was a waste of time and resources to spend weeks examining a nominee’s decisions and legal nuances in preparation for possibly listening to questions. Before Mr. Trump announced his choice to succeed Justice Ruth Bader Ginsburg, Senator Lindsey Graham stated that he had the votes to confirm any candidate both in the Judiciary Committee and on the Senate floor.
Within minutes of the president appointing Judge Barrett, Republican senators began to back her. 38 days later, Justice Ginsburg’s replacement was confirmed. One of the modern Republican Party’s distinguishing features is its obsession with the judiciary and its tenacity in filling seats when its members control the Senate — or obstructing nominations when they don’t.
And while some Senate institutionalists may object, we would be foolish not to notice it. Qualifications must be confirmed. But speed is also crucial. Democrats should follow Mitch McConnell’s lead and move quickly. Teasers who tease the media about their votes only serve to highlight Democratic divides, not the Republicans who are already preparing to reject this historic decision. Tho Justice Breyer won’t retire until June or July, Mr. Biden should narrow his list and announce his candidate promptly, and Senate Democrats should move rapidly to confirm her.
When Democrats filibustered President Trump’s first Supreme Court nominee, Merrick Garland, in 2017, Senator Mitch McConnell increased the 60-vote threshold so that candidates could be approved with a simple majority. After all, Senator Harry Reid had changed the standards for lower-court nominations.
Democrats now have the votes to confirm a new justice with Vise President Kamala Harris’ vote. Regardless of the new Senate rules, Democrats must remove all possible obstacles. President Biden and Senate Majority Leader Chuck Schumer have been quite successful in getting Democrats to agree on a number of judicial nominees, approving 42 in the first year. That shows Democrats know how to fill courtroom seats.
Mr. Schumer said Mr. Biden’s nominee would be considered “with all deliberate speed” after Justice Breyer announced his retirement intentions on Wednesday. A month after Mr. Biden stated he’d name his choice, the White House stated the process may take weeks. Given that the president was a former Senate Judiciary Chairman and that his chief of staff, Ron Klain, was a top assistant on that panel, the Biden team probably has a short list and a favorite in mind.
Those women are unquestionably qualified, but we also have no room for error. So the nominee should have a legal resume comparable to that of a sitting justice or a current federal judge with a recent record of unanimous Democratic support.
And much higher, the nominee would get Republican votes. On the Court of Appeals for the District of Columbia Circuit, Decide Ketanji Brown Jackson was approved by three GOP senators—Lisa Murkowski of Alaska, Mr. Graham of South Carolina, and Susan Collins of Maine. Although the hurdle is higher for Supreme Court seats, a new file of help starts the debate further down the field.
A deliberate approach would add nothing to a toxic and contentious environment. A line from a long-ago approved temporary by the candidate will be twisted into a fatal fault, and some Republicans will try to inflame racial tensions by discrediting her qualifications. So we must never allow the opposition to smear the nominee. The good but hurried nomination procedure must be ignored, including from within our own party, until the president’s candidate is approved.
Shifting quickly isn’t only defensive. It may also help rally the nation. Nominees will be guided by their qualifications. But when President Obama nominated the first Latina — Justice Sotomayor — her incredible life story of growing up in the Bronx as the daughter of Puerto Rican parents won many people over, including detractors like Senator Graham. She is the court’s hottest justice.
The moment Justice Breyer’s replacement is announced, she’ll be a historic figure. Each candidate has a compelling tale to tell and can inspire future generations. Let’s rush to introduce her and get her ready for court.
