President Biden has been gifted a big opportunity just when he needed it most.
Supreme Court Justice Stephen Breyer is expected to retire within months, according to uncontested reports that first came from NBC News Wednesday morning. Breyer, 83, is a member of the court’s liberal minority and the oldest justice on the nine-person bench.
The abrupt development means Biden can get some respite after a miserable period. He now has the chance to bring his party together to advance Breyer’s likely replacement. He can also energize key voting blocs by doing so.
That’s all the more important because Biden’s poll ratings have sagged into negative territory amid several troubles, including COVID-19, inflation and a Capitol Hill logjam.
“In politics, there is nothing like a circuit breaker when the circuit is not going the way you want it to,” said longtime Democratic strategist Tad Devine. “That has just presented itself for the president and his people.”
There are numerous advantages for Biden in the scenario that has begun to unfold.
Biden, while a candidate for the Democratic presidential nomination in 2020, pledged to nominate a Black woman to the Supreme Court if a vacancy were to arise.
White House press secretary Jen Psaki told reporters during Wednesday’s media briefing that Biden “stands by” that pledge.
Such a nomination would surely boost the president’s standing with Black voters — a key constituency for Democrats, and one that has been showing signs of frustration with the Biden administration.
An NBC News poll last week indicated Biden’s approval rating among Black Americans had slipped to 64 percent from 83 percent nine months previously.
The nomination of a Black, female Supreme Court justice would not remedy the problem at a stroke, but it would at least shore up the president’s position.
“If you look at polling and focus groups, African American voters have felt a little bit let down since the president’s election,” said Democratic strategist Julie Roginsky. “I think it is important to underscore that African American women have been the backbone of the Democratic Party, and it would be wonderful for them to have a seat on the highest court in the land.”
The early favorite to be nominated is Ketanji Brown Jackson, a former clerk for Breyer now serving as a judge on the U.S. Court of Appeals for the District of Columbia Circuit. The second name most frequently cited is California Supreme Court Justice Leondra Kruger.
There are several other contenders too, though the suggestion that Biden might nominate Vice President Harris looks to be rooted in mischief-making from conservative sources.
The potential upside for Biden of Breyer’s retirement doesn’t begin and end with an appeal to Black voters, however.
The Senate filibuster has been abandoned for Supreme Court confirmations, meaning that the 50 Democrats in the upper chamber need only stay united to get Biden’s pick through.
The two Democratic senators who have thwarted parts of Biden’s legislative agenda, Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.), have been supportive of his judicial nominees to date.
It’s not a completely done deal.
In a Wednesday statement, Manchin said, “I take my Constitutional responsibility to advise and consent on a nominee to the Supreme Court very seriously.” He added that he looked forward to “meeting with and evaluating the qualifications of” whomever Biden would nominate.
But even some Republicans seem to regard the eventual confirmation of a Biden nominee as a near-certainty.
Sen. Lindsey Graham (R-S.C.), who serves on the Senate Judiciary Committee, said in a statement, “If all Democrats hang together — which I expect they will — they have the power to replace Justice Breyer in 2022 without one Republican vote in support.”
The importance of Biden confirming a nominee to the high court is huge. The president has recently seen his efforts to pass his massive social spending bill stall and a belated push to expand voting rights go nowhere.
A new Supreme Court justice would give Democrats another tangible achievement to put before voters as campaigning for November’s midterm elections heats up. Jackson is 51 and Kruger is just 45, meaning either woman could expect to serve for decades if confirmed.
If the reporting regarding Breyer’s retirement is correct, he will stay until the end of the current Supreme Court term in June or July.
Senate Majority Leader Charles Schumer (D-N.Y.) promised on Wednesday to act on any nominee from Biden “with all deliberate speed.”
It’s possible the Senate could act before Breyer formally steps down. But, one way or another, it seems sure the quest to confirm Breyer’s replacement will be fresh in voters’ minds come the fall.
Biden has been around long enough to know nothing can be taken for granted.
His Supreme Court nominee could hit unexpected rough seas. Other crises, foreign or domestic, could overshadow the process.
But Breyer’s retirement does at least give the president and his party some grounds for optimism as the ticking down of the clock toward November grows louder.
The Memo is a reported column by Niall Stanage.