On Selecting a Supreme Court Nominee: Part I

As all who care are aware, liberal-leaning Associate Supreme Court Justice Stephen Breyer recently announced that he is retiring from the Court at the end of its term in June.  President Joe Biden has already indicated that he intends to nominate an African-American woman to Justice Breyer’s seat, fulfilling a campaign pledge.  I have seen electronic and print media accounts listing U.S. Court of Appeals Judge for the District of Columbia Circuit Ketanji Brown Jackson, 51, California Supreme Court Justice Leondra Kruger, 45, U.S. SC District Judge Julianna Michelle Childs, 55, U.S. Court of Appeals Judge for the Seventh Circuit (Chicago) Candace Rae Jackson-Akiwumi, 43, and U.S. Court of Appeals Judge for the Second Circuit (New York) Eunice Cheryl Lee, 51, as potential nominees.  The names of other black women jurists will undoubtedly surface.  I have no knowledge of any of these candidates, but have seen brief reports that Justice Kruger and Judge Childs are relatively more moderate (i.e., less progressive) in their judicial philosophies.  U.S. SC Rep. James Clyburn, an extremely influential supporter of Mr. Biden, has already stated his support for Judge Childs.  U.S. SC Republican Sens. Lindsay Graham and Tim Scott have also already announced their support for Judge Childs, seemingly all but ensuring that absent now-unforeseen factors, she would have a straightforward and relatively uncontentious Senate confirmation process.

In past notes addressing other Presidential nominations, I have set forth an admittedly simple – and some would suggest, in these partisan days, archaic  😉 — two-factor framework that I submit that each Senator should apply when determining whether to vote to confirm a nominee:   Is the nominee objectively qualified for the position?  If so, is there any other objective factor that should nonetheless disqualify him/her from the position for which s/he has been nominated (e.g., established current drug abuse problem)?  Since the Constitution provides our President the power to nominate whom s/he considers appropriate, I don’t believe that a nominee’s substantive philosophies or policy positions (if within the bounds of law) should be part of the equation.  I would now add a third factor, addressed further in Part II of this note, which shouldn’t be necessary but is, given the mindlessly-contentious environment in which we exist today:  a candidate’s ability to maintain poise in the face of attack, at least during the televised Senate confirmation hearings.

As I indicated ad nauseam in these pages in years past, I consider then-Senate Majority Leader Mitch McConnell’s scuttling of former President Barack Obama’s nomination of then-Judge Merrick Garland to the Supreme Court to have been a despicable dereliction of duty.  At the same time, while there are a thousand things for which I fault former President Donald Trump, his Supreme Court nominations are not among them.  During his term he was presented with three Supreme Court vacancies; it was his role under the Constitution to present the Senate with nominees; in accord with his political preferences, his choices were extremely judicially conservative, but no one questions their judicial competence. 

An aside:  I philosophically disagree with “diversity” picks.  I believe that a President should nominate the candidate, without regard to factors of gender, race, ethnicity, creed, sexual persuasion, or such like, that s/he thinks is most able and suited (albeit liberal or conservative, aligned with the inclinations of the given President) for each of our respective most sophisticated governmental posts.  That said, my sentiments on this issue and their underlying rationales are much broader than Presidential nominations and are better left to another note.  Having pledged during the campaign to nominate a black woman to the Supreme Court if he was elected, it is both the appropriate and politically expedient course for Mr. Biden, although his having so explicitly narrowed the candidate field will inevitably make race a focal point of this nomination exercise.

As in all these processes, the Administration will ultimately narrow the field to a few liberal-leaning jurist finalists. The vetting process will undoubtedly involve grilling each candidate about embarrassing incidents that might not appear on a background check.  Any candidate able enough to warrant nomination has to know that if there are any such incidents in her past, the Republicans will find them.  Even if she is ultimately confirmed, any foreseeable possibility that a stigma would be attached to her during the confirmation process akin to those borne by Associate Supreme Court Justices Clarence Thomas and Brett Kavanaugh would make any sensible person doubt that the game is worth the candle.  Less important but notable:  determining that she has no peccadillos, such as a past college romance with her school’s campus Republican president, that will inflame progressives always looking for a reason to be offended and more than willing to bite their own.

The yammering has clearly already begun from the right and the left regarding the qualities each expects in the nominee.  In order to keep these posts to manageable length, I’ll defer what I would recommend if advising Mr. Biden to Part II.

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