It is a classic American political campaign, though one without speeches, parades, balloons, marching bands, press planes or outdoor rallies. It has been going on for more than a year, most of it out of view of the public. Its consequences reach beyond the next election, beyond even the next decade. And its denouement is days, at most three weeks, away.
The United States will soon replace 11 per cent of its Supreme Court, and the struggle to identify a new jurist to replace retiring Justice Stephen Breyer, and then win her confirmation, now is in full flower.
The choice appears to have come down to three Black women, the result of a Joe Biden campaign promise, and handicapping the finalists has become something of a parlour game, much like the quadrennial preoccupation of the political class to speculate about a presidential nominee’s selection of a running mate. And like the vice-presidential sweepstakes, the decision will be made by one person, often as a result of random, idiosyncratic or inexplicable factors.
Mr. Biden hasn’t sent signals of his inclinations, aside from affirming that he will keep his campaign pledge.
His selection will not substantially alter the makeup of the nine-member court. Justice Breyer is a liberal with some moderate instincts and inclinations, and all three finalists reflect that profile. The presence of a new justice will simply reinforce the composition of the court, where six conservatives, all appointed by Republican presidents, hold the balance of power.
But in an intimate institution like the Supreme Court, a political hothouse where personalities have outsized importance and where coalitions are made and remade depending on the issue before the justices, the replacement of one member by another cannot fail to have an effect.
“With this new Supreme Court justice, we are going to get a wealth of experience and insights that the court has never had the benefit of,” said Jon Michaels, a constitutional law professor at UCLA. “The court’s perspective will be broadened, and that broadening will play out in important opinions.”
The U.S. Supreme Court differs in substantial ways from Canada’s. Its members have lifetime appointments and do not have to retire, as Canadian justices do, at age 75; one of the giants of American jurisprudence, Justice Oliver Wendell Holmes Jr., who served from 1902 to 1932, was 90 when he retired, and Justice Breyer, who joined the court in 1994, is 83 years old. The proceedings of the Canadian court are televised, and those of the American court are not. The Canadian court from time to time takes into consideration international law, which the American court traditionally resists.
The various aspects of Mr. Biden’s personality and background make his decision almost impossible to predict.
Mr. Biden, who once was a public defender and is proud of his service in that role, might lean for that reason to Circuit Court of Appeals Judge Ketanji Brown Jackson, who also was a public defender. The President, who is supremely interested in his legacy, might lean to California Supreme Court Justice Leondra Kruger, 45, who would be the youngest jurist since Clarence Thomas, who also was 45 when he joined the court in 1991.
Mr. Biden, who knows his lagging 2020 presidential campaign was salvaged by the political life raft tossed to him by Representative James Clyburn of South Carolina in that state’s primary election, might want to bow to the wishes of the longest-serving Black member of the House of Representatives and select Mr. Clyburn’s favourite candidate, Federal District Court Judge J. Michelle Childs.
There’s always the possibility that he could defy the Washington wisdom and select Sherrilyn Ifill, director-counsel of the NAACP Legal Defence Fund, or Wilhelmina Wright, a federal judge on the United States District Court for the District of Minnesota.
Then again, none of those factors might come into play. It may simply be that Mr. Biden, a graduate of the University of Delaware, is drawn to Judge Childs, who has degrees from the University of South Florida and the University of South Carolina, as a counterbalance to the Ivy League degrees held by seven of the current sitting judges.
Or it could be something else entirely.
Right now the Washington consensus – seldom a thoroughly reliable source, though always a thoroughly confident one – gives the nod to Judge Jackson, whose position on the District of Columbia Appeals Court is a traditional launching pad for the high court; eight of those who sat on that bench, including two chief justices, have won Supreme Court appointments.
But Mr. Biden – himself, from 1987 to 1995, the chairman of the Senate judiciary committee, which is to hold confirmation hearings on the Biden selection – is acutely aware that seven presidential preferences for the court since 1968 failed to win a seat, and he does not want to put forward a justice who cannot be confirmed.
The potential nominee with the best chance of winning Republican support in an evenly divided Senate may be Judge Childs, who is known to have at least the tentative support of the two GOP senators from South Carolina, Lindsey Graham and Tim Scott. Mr. Graham is the second-ranking Republican on the Senate judiciary committee and, until the Democrats won control of the Senate, was its chairman.
But Mr. Biden’s campaign pledge has rankled some Republicans, who argue, as Senator Ted Cruz of Texas did, that narrowing the selection to Black women is tantamount to saying, “If you’re a white guy, tough luck. If you’re a white woman, tough luck. You don’t qualify.” Senator Susan Collins of Maine, a moderate Republican who ordinarily is considered open to Democratic initiatives and appointees, has made the same argument in less strident language.
The Senate has confirmed pathbreaking nominees by large margins in the past: Louis Brandeis, the first Jew on the court, was confirmed by a 47-22 vote in 1916; Thurgood Marshall, the first Black on the court was confirmed by a 69-11 vote in 1967; and Sandra Day O’Connor, the first woman on the court, was confirmed unanimously in 1981.
And yet Supreme Court nomination fights in recent years have become searing forums for contentious issues that were not anticipated when the nominations were made.
Mr. Biden was a principal in two of the most controversial: Ronald Reagan’s 1987 nomination of Robert Bork (which raised the question of how much a nominee’s ideology should be a factor in confirmations); and George H.W. Bush’s 1991 nomination of Clarence Thomas (which put sexual harassment at centre stage, an issue that was reprised in 2018 with the nomination of Brett Kavanaugh). Just as the implication of the justices’ decisions are unpredictable, so, too are the confirmation processes that place them on the court, or deny them seats.
Special to The Globe and Mail
David Shribman