New Justice: Biden Should Fufill His Promise Of Bipartisanship

The Biden administration has received a tremendous gift in the form of 83-year-old liberal Justice Stephen Breyer announcing his retirement from the Supreme Court. With President Biden’s approval rating underwater, his Build Back Better legislation stalled and a struggling economy, the president has the opportunity to accomplish something of lasting significance — a young justice who could serve for decades.

Breyer has every right to retire whenever he pleases, much less waiting until the age of 83. Especially after a torturous end of tenure to former colleague Ruth Bader Ginsburg, Breyer was smart to retire while healthy and prevent another controversial confirmation, such as the most recent that led to the confirmation of conservative Justice Amy Coney Barrett. 

The president ran to “lower the temperature” of polarized politics and unite the country. He only has one accomplishment even close to that promise — the bipartisan infrastructure package. Pardon my wishful thinking, but this Supreme Court nomination is a serious opportunity to make due on his promise of bipartisanship.

Presidential Supreme Court nominees are confirmed by the Senate with a simple majority. A 50-50 split Senate makes things difficult, but all hope is not lost for the Biden camp. There are several moderate Republican senators who would be willing to vote for a great nominee.

Sens. Susan Collins and Lindsay Graham both supported President Obama’s nomination of Elena Kagan in 2010. Sen. Lisa Murkowski, with the former two, approved Breyer’s possible replacement, Ketanji Brown Jackson, to the U.S. Court of Appeals for the D.C. Circuit. There are also the other usual suspects of moderate Republican senators such as Mitt Romney, Ben Sasse and others.

The president could become a unifier in this situation if he truly meant what he promised on Inauguration Day. There is no reason he cannot pull this off. The Republican votes are there for the taking, but bipartisanship will just take some effort.

Biden has promised since his presidential campaign that he would nominate a black female justice to the court, which, unfortunately, discredits the nominee for being chosen for their identity first. Despite digging himself into a corner, he can still propose an intelligent, well-qualified, high-character black female that can glide through the nomination process.

While there may be naivety on my part in hoping this confirmation will be of a relative bipartisan nature, I would find it hard-pressed for Biden to nominate a controversial, progressive judge and get away with it. Sens. Joe Manchin and Kyrsten Sinema, two thorns in the side of the president, must be appeased to reach the 50-vote threshold.

The moderates in the Senate will not be sold on a nominee just because she will break barriers. President Biden will need to put forth a great candidate and work with these swing votes to have a bipartisan confirmation process. A black female justice would be great, but she must be thoroughly qualified if she is going to pass this tight Senate split.

The highest court in the land deserves nothing less than a phenomenal, intelligent judge. Breaking barriers can be an added bonus, but it should not be the entire focus.

As much as the Biden administration tends to entertain the opinions of progressives on the left, it needs to practice discipline with this nomination. The president needs to fulfill his promise of a bipartisan unifier, and this Supreme Court nomination is a golden opportunity to do so.

Browder is an opinion writer.