The expected retirement of liberal Supreme Court Justice Stephen Breyer arrives at a critical juncture for President Joe Biden, offering the Democrat and his party an opportunity to recover lost support among Black voters ahead of the midterm elections.
Biden is likely to nominate the first Black woman to the nation’s highest court, civil rights leaders and White House allies say. The appointment would allow Biden to fulfill a key campaign pledge that could also help animate voters in the Democratic Party base.
“He must keep his promise. He unsolicited made the commitment,” said Rev. Al Sharpton, founder of the National Action Network. “Both the nomination and how it’s handled in the Senate could have real ramifications on the turnout of particularly Black voters in a midterm election. So this is as significant as it can be.”
Strategists and activist leaders caution that any political benefit for Biden depends on the justice’s confirmation in the Senate, where many of them expect fierce resistance from Republicans. And they add that even a successful appointment won’t heal all wounds the president has suffered since taking office, particularly as major parts of his legislative agenda remain stalled and the price of everyday goods continues to soar amid inflation.
But liberals have pressured Breyer, who has served on the Supreme Court since 1994, to retire since Biden took office last year. They argued that the 83-year-old justice should step aside while Democrats were still in control of the Senate, which must confirm the president’s judicial nominees.
Democrats are at risk of losing their hold over the 50-50 Senate after November’s elections, but progressive activists and civil rights leaders say that the confirmation of a Black woman to the Supreme Court could help Biden to mollify disappointed voters.
Biden’s support among Black voters has dropped significantly since he came into office. Just 60% of Black adults approve of Biden’s performance, according to a survey released this week by the Pew Research Center.
In the 2020 election, Biden won 87% of the Black vote, exit polls showed.
Low levels of approval for Biden in the Black community have alarmed Democrats, who say the party can’t afford to lose support within a group of voters traditionally loyal to the party before what is expected to be a difficult election.
“Hopefully, he makes it easy on all of us and gives us a win here,” said Democracy for America CEO Yvette Simpson, “considering the fact that he hasn’t really been able to deliver in a lot of ways on some of these other promises that he’s made.”
Democratic Whip and South Carolina Congressman Jim Clyburn said the pick would give Biden momentum ahead of the midterm elections and help solidify his support among Black voters who are unfamiliar with actions the president has taken to advance racial equity.
“Black voters do not know what he has done. Maybe I’m at fault with that as well,” Clyburn said in an interview. “We just got to do a better job of accentuating the positives in this administration.”
As a candidate, Biden pledged to nominate the first Black woman to the court, and White House press secretary Jen Psaki reiterated the pledge on Wednesday.
“The president has stated and reiterated his commitment to nominating a Black woman to the Supreme Court and certainly stands by that,” Psaki said.
Clyburn sent a letter to the Biden administration advocating for Michelle Childs, a federal judge for the District of South Carolina. Other potential picks include Ketanji Brown Jackson, a circuit judge for the United States Court of Appeals, Leondra Kruger, who sits on the California Supreme Court, and Kristen Clarke, an assistant attorney general.
White House allies do not agree about the legal pedigree and educational background that Biden’s nominee should have and did not immediately rally around a single candidate.
While some said Biden should follow the path of least resistance politically and nominate a jurist who has survived a Senate confirmation process, others argued that the president should appoint as progressive a judge as possible.
Jackson, for instance, was confirmed in the Senate last year by a vote of 53-44, earning support from three Republicans.
Marc Morial, the president and CEO of the National Urban League, argued that Biden should pick a judge who has been vetted and confirmed already and has prior judicial experience.
“You got the midterm elections bearing down, you have 50 Republican members who have used the filibuster, that have abused it. You’ve got 50 Democrats, you’ve got to hold all 50 together and get the vice president to come over and break the tie,” he said. “You can’t lose one vote.”
Supreme Court justices are given lifetime appointments, and the court often considers cases of visceral importance to many Americans, including on abortion, affirmative action policies, and voting rights.
Leslie Proll, a civil rights lawyer who advises the NAACP on judicial nominations, said Biden should consider nominating someone who has worked to advance racial equality and civil rights in their legal career.
“President Biden should go as boldly as possible in making this choice, because it’s just too important to the court and to the American people,” she said.
Whoever Biden chooses, he needs to make a quick decision, Morial said.
“Letting it linger just creates problems. Speculation. Rumors. Posturing. Politics,” he said. “There’s no need.”
Some political strategists caution that, although the nomination fight over a Black woman could help Biden with African-American voters, it’s not a panacea. Many Black voters are worried about the unpredictable economy and rising costs of everyday goods — problems that filling a Supreme Court vacancy would do little to affect.
And progressive leaders say that the president would still need to make progress with passing his stalled legislative agenda, including a social spending and climate change bill known as Build Back Better, if he wants to regain all of the ground he lost since taking office. They say a Supreme Court nomination is only part of the solution.
“The Build Back Better agenda is an incredible investment in Black and brown and poor communities. That is the potential huge win that can move the president’s numbers in the right direction,” said Rahna Epting, executive director of the liberal group MoveOn.org. “I think a Black woman being nominated and confirmed as a Supreme Court justice could also be a huge potential win.”
Supreme Court fights have traditionally been major spectacles in Washington, although they can have varying effects on the political attitudes of the public.
An open Supreme Court seat in 2016, after the death of conservative justice Antonin Scalia, is widely credited with helping Donald Trump win the presidency that year. GOP voters who were otherwise skeptical of the reality TV star voted for Trump after he released a list of conservative judges he promised to pull from if the court experienced a vacancy.
But a fight over the replacement for the late liberal justice Ruth Bader Ginsburg — one in which then-President Trump nominated conservative justice Amy Coney Barrett — in the 2020 presidential election appeared to do little to change the trajectory of that race.
“I always think Supreme Court battles are more hyped in Washington than they are in the rest of the country,” said Rory Cooper, a longtime Republican strategist. “I don’t think that voters typically elevate the Supreme Court to the issues that matter most to them unless there is a significant decision recently.”
The State’s Maayan Schechter contributed reporting.
This story was originally published January 26, 2022 7:36 PM.