How Joe Biden Is Choosing a Supreme Court Nominee

With a freshly stoked fire roaring in the fireplace behind him, President Joe Biden welcomed into the Oval Office Tuesday two of the most powerful Senators charged with considering his pick for Supreme Court. “We’re different parties, but two good friends,” Biden said, gesturing toward the top Republican on the Judiciary Committee, Chuck Grassley of Iowa, and his fellow Democrat, committee chair Dick Durbin of Illinois. “We’ve done an awful lot of Supreme Court Justices together,” Biden said, referring to his own history as a leading Senator on the committee.

But Biden’s never gone through the grueling Supreme Court nomination process—which has been particularly divisive in recent years—from this end of Pennsylvania Avenue. Biden pointed to a line in Article II of the Constitution that instructs the President to nominate Justices “with the advice and consent” of the Senate. “I’m serious when I say it,” Biden said, “I want the advice of the Senate as well as the consent.”

He won’t find himself short on advice. Biden has pledged to nominate a Black woman to fill retiring Justice Stephen Breyer’s seat. Already, powerful South Carolina Congressman James Clyburn, whose endorsement in 2020 helped Biden secure the Democratic nomination for President, and Republican South Carolina Senator Lindsey Graham, who serves on the Judiciary Committee, have begun pressuring Biden to nominate a District Court judge from their state, J. Michelle Childs. Others have floated the candidacies of D.C. Circuit Court Judge Ketanji Brown Jackson and California Supreme Court Justice Leondra Kruger. Right now, the President is considering 10 candidates, according to a source familiar with the White House vetting process.

How Biden handles his first Supreme Court nomination—which he’s called one of a President’s “most serious constitutional responsibilities”—could prove crucial to his political future. His pick to replace Breyer will likely ensure that seat remains occupied by a liberal justice for years to come, but it won’t change the ideological makeup of the Supreme Court, which has a conservative supermajority of 6-3. Yet his decision could still carry enormous political consequences and help boost enthusiasm among Democratic voters going into November’s midterm elections. Nominating and confirming the first-ever Black woman Supreme Court Justice may be a welcome way for the White House to shift the narrative, as Biden’s approval ratings slump amid the continuing COVID-19 pandemic, price increases and pandemic-related supply chain delays, as well as Russia’s troubling escalations on the borders of Ukraine.

Last year, months before Breyer formally announced his retirement on Jan. 27, Biden was already spending time reviewing the biographies of Supreme Court candidates, says the source familiar with the process. Internally, deputy White House counsel Paige Herwig has been managing the flow of information to Biden on judicial nominations. As the confirmation process ramps up toward a selection and public hearings, Biden is bringing in former Alabama Senator Doug Jones, the White House announced, to run a war room for getting Biden’s pick through the rough-and-tumble public airing of the candidate’s judicial record and personal life. Jones is tasked with introducing the nominee to Senators and arranging meetings as lawmakers prepare to evaluate her for the lifetime appointment.

With the White House team in place, Biden is hoping the first phase of the nomination process runs smoothly and quickly. He says he hopes to announce his nomination by the end of the month.

Key players

Biden has stacked his team with veterans of past Supreme Court fights.

Biden’s Chief of Staff Ron Klain served as chief counsel to the Senate Judiciary Committee from 1989 to 1992, including during the bitter confirmation of Justice Clarence Thomas. White House counsel Dana Remus clerked for Justice Samuel Alito in 2008, and senior counsel Herwig worked for Democratic California Sen. Dianne Feinstein on the Judiciary Committee in 2017. Vice President Kamala Harris served on the Judiciary Committee when she was a Senator, and Biden said on Jan. 27 that he’s “fortunate” Harris will be advising him on the selection process.

The White House announced Wednesday evening that it was bringing on two more outside advisors to the process along with Jones. Minyon Moore, a former director of political affairs in the Clinton White House, will work to mobilize a nationwide campaign of support for Biden’s pick, and Ben LaBolt, a former press secretary for President Obama’s reelection campaign, will advise Biden on communications around the confirmation process. They will work closely with the team currently advising Biden, which also includes Biden senior advisor Cedric Richmond, director of legislative affairs Louisa Terrell, Terrell’s deputy Reema Dodin and counsel to the Vice President Josh Hsu.

The President himself may have more knowledge of the inner workings of the Supreme Court nominations process than nearly any politician in Washington. He served as the Chairman of the Judiciary Committee for eight years, overseeing six Supreme Court confirmation hearings.

Biden laid out on Tuesday what he and his team will look for in this nominee. Speaking to reporters, Biden said he views the Constitution as a document that is “always evolving slightly in terms of additional rights or curtailing rights.” Referring to notes on a long, white card in his hand, Biden explained he is looking for a nominee with “character” who is “courteous to the folks before them,” treats people “with respect,” and has a judicial philosophy that suggests there are “unenumerated rights in the Constitution.”

While the White House has not publicly confirmed any of the 10 names under consideration, Jackson is widely considered a top contender. She clerked for Breyer, served as a district judge for over eight years, and in June was confirmed to the U.S. Court of Appeals for the District of Columbia with 53 votes in the Senate, including Republican Sens. Lisa Murkowski of Alaska, Susan Collins of Maine, and Graham. A history of bipartisan support could give her an advantage, as well as the fact that the White House could move quickly on her since she was recently vetted for the D.C. Circuit position. Biden reportedly personally interviewed Jackson before she was nominated for the D.C. Circuit court. “Essentially [the White House] can just do a quick update to her background investigation and vetting and nominate her quickly,” says Mike Davis, who served as chief nominations counsel when Grassley chaired the Judiciary Committee during the Trump Administration.

But Childs, who has served as a district judge in South Carolina since her appointment by former President Barack Obama in 2010, has already been drawing vocal support from across the aisle. Graham said Wednesday that Childs is “somebody I could see myself supporting,” and he warned that if Biden’s pick isn’t Childs, it could be “much more problematic.” Graham said he spoke to fellow South Carolina Republican Sen. Tim Scott about her, and Rep. Clyburn, a Democrat, has predicted that both Republican Senators from the state would support Childs.

Kruger is also a contender. The 45-year-old California justice argued before the U.S. Supreme Court at least 12 times while working in the Solicitor General’s office from 2007 to 2013. She joined the California Supreme Court in 2015, where she has been known as an incrementalist, telling the LA Times in 2018 that she strives to work in a way that “enhances the predictability and stability” of law and builds “trust in the work of the court.”

Legal experts, including those that served on the White House’s Supreme Court reform commission, have told TIME that NAACP Legal Defense Fund President Sherrilyn Ifill, recently confirmed Ninth Circuit Judge Holly Thomas, NYU Law professor Melissa Murray, and The New Jim Crow author and law professor Michelle Alexander, may also be names in the mix.

Biden will likely need the support of all 50 Democratic senators to ensure his pick is appointed to the nation’s highest court. If a Democratic Senator decides to retire, falls ill or passes away, the Democrats could lose their razor-thin 50-50 hold on the Senate—stakes that were highlighted by news on Tuesday that Sen. Ben Ray Luján, a Democrat from New Mexico, had suffered a stroke. (Luj́an is not on the Judiciary Committee, so his absence would not impact any hearings.)

In the meantime, Biden will continue meeting with leaders, experts and ultimately the contenders themselves as he comes closer to announcing a decision at the end of February. That means that as the process heats up, that Oval Office fire will keep roaring.