Biden initially promised on the campaign trail to nominate a Black woman if he was elected and a Supreme Court seat became vacant. White House Press Secretary Jen Psaki confirmed hours after Breyer’s retirement was reported that Biden stands by his pledge. “The president has stated and reiterated his commitment to nominating a Black woman to the Supreme Court, and certainly stands by that,” she said at a press briefing.
— CSPAN (@cspan) January 26, 2022
NPR’s Nina Totenberg noted earlier on Wednesday that federal Judge Ketanji Brown Jackson and California Supreme Court Justice Leondra Kruger are the leading contenders to land the nomination. Both are women of color.
Breyer’s retirement will clear the way for President Biden to nominated a new liberal, a crucial move considering Breyer’s age, 83, and the uncertainty around which party will control the White House after the 2024 election.
Breyer is one of just three liberal justices on the nine-person court, along with Elena Kagan and Sonia Sotomayor. President Trump was able to nominate and confirm three new justices — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — in just four years in office, giving conservatives a 6-3 supermajority.
Barrett’s nomination and confirmation in 2020 followed the death of liberal Justice Ruth Bader Ginsburg. Ginsburg was 87 at the time of the death, and had resisted pressure to retire while President Obama was still in office before her spot was ultimately filled by Trump. Many feared something similar would happen with Breyer should he hold onto his seat throughout and potentially beyond Biden’s time in office. Breyer, however, didn’t seem swayed by liberals calling for him to step down.
“No,” he said last summer when asked whether he’d decided to step down.
“I’m only going to say that I’m not going to go beyond what I previously said on the subject, and that is that I do not believe I should stay on the Supreme Court, or want to stay on the Supreme Court, until I die,” he added during a conversation with NPR in September. “And when exactly I should retire, or will retire, has many complex parts to it. I think I’m aware of most of them, and I am, and will consider them.”
The looming question is whether the Senate will be able to confirm Biden’s nominee before Democrats potentially lose their majority after this fall’s midterm elections. Confirmation would require a simple majority of senators, but if we’ve learned anything from Biden’s first year in office, nothing is simple in the Senate.
This story has been updated.