Supreme Court Justice Stephen Breyer’s pending retirement presents President Joe Biden a chance to salvage his public approval, but it also complicates chances of passing a scaled-down version of his Build Back Better spending bill before the midterm elections.
Breyer’s retirement, which could be formally announced as early as Thursday, allows Biden to make good on a major campaign promise: nominating the first black woman to serve on the nation’s highest court. White House press secretary Jen Psaki declined to offer any additional details on possible nominees or a timeline for putting names forward, but she affirmed at Wednesday’s press briefing that Biden would stand by his pledge.
WHITE HOUSE: BIDEN STANDS BY PLEDGE TO NOMINATE BLACK WOMAN TO SUPREME COURT
“The president has stated and reiterated his commitment to nominating a black woman to the Supreme Court and certainly stands by that,” she told reporters. “For today, again, I’m just not going to be able to say anything about any specifics until, of course, Justice Breyer makes any announcement, should he decide to make an announcement.”
Black Americans’ perceptions of the president fell more than 20 points during his first year in office, with the latest poll from Quinnipiac finding just 57% approved of his job performance in mid-January. That could largely be attributed to Biden’s repeated failures to usher two voting bills, the Freedom to Vote Act and John Lewis Voting Rights Act, through the Senate. Additionally, a new poll from the Republican State Leadership Committee and Cygnal found generic, down-ballot Republicans currently leading Democrats by 6 points among the electorate as a whole ahead of the midterm elections.
Breyer is expected to stay on through the end of the current Supreme Court term this summer. The White House is likely to nominate a replacement shortly after that, but the confirmation process will eat up much of 2022’s legislative calendar as Democrats prioritize Biden’s nominee while they still hold a slim majority in the Senate.
The White House and Senate Majority Leader Chuck Schumer will need to work overtime to ensure centrist Democratic Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, the two obstacles to Biden’s social spending legislation, filibuster reform, and voting rights legislation stick with the party. However, unlike legislation, judicial nominees only require simple majority votes to be confirmed.
Still, senior Democratic officials told the Washington Examiner that even before the Breyer news, it would have taken weeks for the White House to relaunch a serious third round of Build Back Better negotiations with lawmakers. Furthermore, the opportunity to work with Republicans on passing some Build Back Better provisions, such as extending the expanded child tax credit, as stand-alone bills could die if Biden eventually nominates someone Republicans deem “too liberal” to the court, one senior GOP aide said.
Missouri Republican Sen. Josh Hawley, one of the few GOP lawmakers who voiced some approval for a few of Biden’s family-centered spending proposals in 2021, drew a clear line in his first reaction to Breyer’s retirement.
“Moment of truth for Joe Biden. Will this deeply unpopular & divisive president finally reject the radical elements of his party and nominate someone who loves America and believes in the Constitution? Or will he continue to tear apart this country w/ a woke activist?” he wrote. “If he chooses to nominate a left wing activist who will bless his campaign against parents, his abuse of the FBI, his refusal to enforce our immigration laws, and his lawless vaccine mandates, expect a major battle in the Senate.”
If he chooses to nominate a left wing activist who will bless his campaign against parents, his abuse of the FBI, his refusal to enforce our immigration laws, and his lawless vaccine mandates, expect a major battle in the Senate
— Josh Hawley (@HawleyMO) January 26, 2022
Senate Minority Leader Mitch McConnell declined to offer an initial comment.
“We don’t even know who the nominee is yet, so that’s something the president has an opportunity to make, and Justice Breyer will determine when and if there’s a vacancy,” he told reporters in Bowling Green on Wednesday.
Republican senators will also likely seek to turn the confirmation hearings for whoever Biden nominates into a public spectacle. One senior GOP aide pointed to the confirmation hearings for Supreme Court Justices Amy Coney Barrett and Brett Kavanaugh as examples of what type of questions to expect from Republicans. Another GOP aide cited the confirmation for Justice Clarence Thomas, which Biden, then-chairman of the Senate Judiciary Committee, presided over himself in 1991.
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During those nearly 24 hours of questioning, Biden zeroed in on Thomas’s views on “natural law” and sexual harassment allegations raised by lawyer Anita Hill.
