On Several Levels It Matters

Again, a lot happened last week but to me the big story is a no-brainer. Associate Supreme Court Justice Stephen Breyer announced his retirement.

Breyer announced he would be retiring at the end of this term, (which is late June or very early July), provided a replacement had been confirmed. That means President Biden gets to nominate a replacement and the Democrats control the process. I am among the many who feel the timing was political in that the Republicans have a chance of retaking the Senate in the mid-terms and the smart money is that if they did Mitch McConnell and company would not allow a Biden nominee to get a hearing leaving the seat open for as long as they controlled the Senate and the Democrats control the White House. Considering recent history that seems like a smart money bet, not a phobia.

The next step is the naming of a nominee. During the 2020 campaign Biden promised that if he were given the opportunity, he would nominate a Black woman. In recent days he has confirmed that.
Politically that is a smart move especially in view of the to this point failed effort at voter protection. Black women are the most important “foot soldiers” in Democratic campaigns and they feel that they have not received their “paychecks”. Putting a Black woman on the high court’s bench will go a long way to giving them the return on investment they feel they deserve. I wouldn’t be much an op-ed guy if I didn’t give you a few names I feel are the most likely nominees. In my case I have it down to three and one really gets an asterisk.

Far and away the favorite is Ketanji Brown Jackson. She is current a federal judge and a graduate of Harvard Law School. Not to be discounted is the fact that she clerked for Justice Breyer. This retirement announcement was politically convenient for the Democrats and Breyer expressed a concern about his replacement. Jackson was confirmed for her current position in June of 2021 with the support of three Republican Senators. Susan Collins of Maine and Lisa Murkowski of Alaska were no surprises but significantly the trio was rounded out by Lindsey Graham of South Carolina who also sits on the Senate Judiciary Committee. If she is the nominee all political junkie eyes will be on Graham. It is difficult to confirm someone for the DC Circuit and a few months later say they are unqualified to sit on the Supreme Court.

The other main candidate is J. Michelle Childs of South Carolina. She is the favorite of Representative James Clyburn of South Carolina whose endorsement in the primaries arguably made Biden president. I also have to wonder if the home state thing will influence Graham who if he comes on board basically makes Senate confirmation a foregone conclusion. At 55 she is only four years older than Jackson so that isn’t really a factor. Justices seem to serve into their 80s these days so the relative youth (for a high court judge) is about equal in both cases. Childs’ law degree is from the University of South Carolina which would satisfy the anti-Ivy league factor that many keep just below the surface.

Now to my “asterisk”; and I don’t mean that derisively. It is Sherrilyn Ifill. Ifill’s reputation is as a civil rights crusader. She recently retired as the head of the NAACP’s Legal Defense Fund. That was the position the late Thurgood Marshall held before he took a seat on the Court. At 59 she has a slight disadvantage on age, but not an insurmountable one. She earned her law degree from New York University, certainly a great law school but not an Ivy League one. In my mind she would be the most difficult of the three to get confirmed but if my sole goal was to please the Black female segment of the constituency she would be my pick. If a Jackson-Childs battle develops within the Democratic party – and I do not expect one to – Ifill would be a great compromise pick.

One of the racist right wing attacks is that Biden will not be able to find a qualified Black woman to nominate. The three I have outlined above would all be great additions to the Court and that is not the complete list by far.

One last prediction: At this point I expect confirmation by a vote of anywhere between 51-50 and 55-45. I think a few other Republican Senators may be in play and don’t feel any of the Democrats will jump ship.

In the short run the new justice will not change the composition of the Court; it will still be 6-3 but just think how much more difficult overcoming a 7-2 deficit would be. In the long run you are swapping a somewhat reliable liberal vote in his 80s for a much more reliable liberal vote in her 50s. That’s a win. In the process you have gone a long way in solving the Democrats turnout problem in 2022 and beyond. That matters on several levels and may just help save American democracy.

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