The White House is playing offense in the coming Supreme Court nomination fight as it seeks a reset for President Joe Biden’s second year in office and insists that the high court should be above political games.
But the proactive approach from an administration, apparently haunted by former President Barack Obama’s inability to appoint now-Attorney General Merrick Garland, is not deterring Republicans and conservative outside groups from countering with a little defense, even though their hands are tied with an evenly divided Senate and no ability to filibuster the nominee.
BIDEN AND DEMOCRATS NEED MORE THAN A SUPREME COURT FIGHT TO ENERGIZE VOTERS
White House press secretary Jen Psaki contended this week that Republican criticism of a yet unnamed Supreme Court nominee as “radical” had “obliterated their own credibility.” Her line spins GOP complaints, which contend that Biden was not transparent during the 2020 campaign because he did not publish a list of candidates, into an advantage.
Josh Blackman, a Federalist Society legal expert and South Texas College of Law associate professor, argued the assertive posture was odd considering the hyperpartisanship adopted when then-President Donald Trump tapped Neil Gorsuch, thanks to then-Senate Majority Leader Mitch McConnell delaying a vote until after Obama’s term had ended. And again for Supreme Court Justice Brett Kavanaugh, who was accused of sexual misconduct. Kavanaugh still denies the allegations.
“In 2018, after Justice [Anthony] Kennedy retired, progressive groups came out hard against whoever Trump appointed,” Blackman said. “I think it is fairly common now [for] the party out of power to oppose nominees, regardless of qualifications. We are long past the days when someone like Antonin Scalia was confirmed 98-0,” he added of the late justice.
For Heritage Action Executive Director Jessica Anderson, the pressure exerted on Breyer, 83, to retire while there was a Democrat in the White House and the party controlled Congress seemed “even more relevant now.” Supreme Court Justice Amy Coney Barrett was expeditiously appointed to replace Ginsburg before Trump left office.
“The bills that the liberal base of the Democratic Party wanted to see on the president’s desk, like Build Back Broke, election takeover legislation, and the Green New Deal, failed last year, and this is an intentional effort to appease the base just in time for November,” she said. “This is a voter turnout strategy for Democrats who have failed to pass a radical leftist agenda that satisfies the left wing of their party.”
In particular, the Supreme Court nomination and confirmation is an opportunity for Biden to bolster his support among black Democrats before the 2022 midterm cycle. Amid sliding poll numbers, Biden admitted during last week’s rare press conference that he has to sell his policies better to the community, without whom he would have not won the 2020 South Carolina primary or become the party’s standard-bearer and country’s president.
Psaki this week also slammed skeptics of Biden appointing the Supreme Court’s first black woman, who she said would be “eminently qualified,” as “ludicrous.”
Jenny Beth Martin, Tea Party Patriots Action’s honorary chairwoman, is one of those people. She told the Washington Examiner that Biden’s and Democrats’ “love of identity politics” was making a mockery of the Supreme Court.
“If you’re male or not black, you need not apply,” she said. “That selection criteria is designed not to find and nominate the best Supreme Court justice available, but to check off two boxes on a personnel form. America will be the poorer off for it — and so will our children’s dreams.”
The Supreme Court similarly provides Biden with a platform to appear competent after a rough period amid the pandemic and concerning economic data, as well as stalled negotiations in Congress over his $2 trillion social welfare and climate spending bill and an unsuccessful attempt to convince senators to change their chamber’s rules so they can pass voter law reforms.
Neither Biden nor Psaki has outlined his Supreme Court process in depth other than his self-imposed February deadline. But they have both stressed it will be “rigorous” after Biden, a onetime Senate Judiciary Committee chairman and Obama’s second in command, started reviewing biographies last year with the help of White House chief of staff Ron Klain, White House counsel Dana Remus, and Vice President Kamala Harris.
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“What he brings to it is experience and also a recognition of the solemn importance of the role any president plays in selecting a nominee to serve in a lifetime appointment on the Supreme Court,” Psaki said.
