The Daily - Biden Gets a Supreme Court Pick

Episode Date: January 27, 2022

On Wednesday, it was revealed that Justice Stephen Breyer, the senior member of the Supreme Court’s liberal wing, will retire from the bench. Democrats, and many on the left, will have breathed a sigh of relief. His decision has given President Biden the chance to nominate a successor while Democrats control the Senate. We take a look at the legacy of Justice Breyer’s time on the court, why he chose to retire now and how President Biden might decide on his successor. Guest: Adam Liptak, a Supreme Court reporter for The New York Times.Want more from The Daily? For one big idea on the news each week from our team, subscribe to our newsletter. Background reading: Justice Breyer has announced that he will retire from the Supreme Court bench upon the confirmation of his successor.President Joe Biden and his legal team have spent a year preparing for this moment: the chance to make good on his pledge to name the first Black woman to the Supreme Court. For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From New York Times, I'm Michael Bilbaro. This is The Daily. Today, the resignation of Supreme Court Justice Stephen Breyer. I spoke with my colleague, Adam Liptak, about the story behind Breyer's decision and who President Biden is likely to nominate to replace him. It's Thursday, January 27th. Good evening, Mr. Liptak. Hello, Michael. I feel like I should tell you in all candor that this was not going to be our episode for tomorrow.

It wasn't part of my plans either. We were deep into making part two of our series about this moment and the pandemic, and we all looked up from a Google Hangout, and we saw this news bulletin from you, and we hadn't expected it. And you didn't give us any warning. I apologize. Was it a surprise to you? Well, big picture, we knew he was going to retire this term. Smaller picture,

there were rumors in the past several days that it might be coming now. But there are always those kinds of rumors, and I didn't put particular stock in them. Most retirement announcements come in the late spring or even on the last day of the term in late June. So this was a genuine surprise, timing-wise? Timing was surprise, yeah. So I'm now having flashbacks to all the times where we talked to you about a Supreme Court justice either stepping down, and I'm thinking now to Justice Kennedy, or died in the case of Justice Ginsburg since we started the show in 2017. So just to start this conversation, put this Supreme Court news, this decision to step down by Justice Breyer into that context?

So this is more routine. It doesn't involve a death as we had with Justice Ginsburg. It doesn't involve the prospect of a big ideological shift as we had with Justice Kavanaugh, as we had with Justice Kavanaugh, a conservative replacing the more moderate Justice Kennedy, or even more strikingly, Justice Amy Coney Barrett, quite conservative, replacing the quite liberal Justice Ruth Bader Ginsburg. Right. Here we have an older liberal justice, Justice Pryor is 83, stepping down to give way to presumably a younger, quite similar ideologically liberal justice, Justice Breyer is 83, stepping down to give way to, presumably, a younger, quite similar ideologically liberal justice. But that's not going to change the composition

of the court. Before and after, it's going to remain a six to three conservative court. Got it. So this is going to be remembered, if we can be reductive for a moment, as the resignation of a liberal justice in the court's ideological minority who's going to be replaced by a liberal justice who ends up in the court's ideological minority. It's kind of a one-for-one swap. That doesn't really change the court's dynamics. Right, and you're right to say that's reductive, and different justices will have different judicial philosophies and interests and at the margins there will be differences. But over the vast run of cases, that's almost certainly what we're going to see. Nonetheless, the left is breathing a huge sigh of relief because what they were terrified of was that Justice Breyer hangs on, control of the Senate changes, and a 6-3 court becomes maybe a 7-2 court.

So this is playing defense mostly on the part of the left. But nonetheless, they're much happier today than they were yesterday because they were so terrified they'd have a repeat of the Justice Ginsburg experience where she hung on so long that it gave Republicans a chance to name her successor. Well, talk more about the lesson of Justice Ginsburg, because you're making it sound like Justice Breyer would have been aware of that and perhaps self-consciously acted differently. Well, the obvious lesson is that Justice Ginsburg bet wrong. She didn't step down under President Obama,

who would have replaced her with another liberal justice. She was confident that Hillary Clinton would win. That turned out to be wrong. She thought she could outlast the first term of Donald Trump's presidency, and she got close, but not close enough. And in the waning days of the Trump's presidency, and she got close, but not close enough. And in the waning days of the Trump presidency, she died, and President Trump replaced her with the far more conservative Justice Amy Coney Barrett. So the lesson for Breyer, on one level, is let's not do

that again. If I want to be replaced by someone who's not going to undo my legacy, and he has talked about that fear, he should do what he can to step down under a Democratic president, President Biden. And the control of the Senate could easily flip with the next election. And so you'd be playing with fire if you didn't step down around now or in the next few months. Got it. So to some degree, this very much does appear to be a justice attempting to avoid making the exact same set of decisions that Justice Ginsburg made,

which many think she would have come to regret. Right. Now, I don't think he would adopt that as the sole or the main reason for his stepping down. So, yes. I interviewed him in August in connection with a book he had out. And I know the one thing you don't want to talk about,

which is the only thing anyone cares about. I know. And I asked him about his retirement. But I'm going to ask you something that comes out of your book because it tries to show the relationship between the court and politics. So Dellinger asks this of Chief Justice Rehnquist. Is it inappropriate for a justice to take into account the party or politics of the sitting president when deciding whether to step down from the court? And the former chief justice says, no, it's not inappropriate.

Deciding when to step down from the court is not a judicial act. Well, that's true. And there are many things that go into retirement decision. And he said many, many things go into the decision. His role on the court, his seniority, his health. I don't think I'm gonna to stay there until I die. And he didn't adopt the idea that this is a reductive political decision. In fact, in general,

he has over the years very much resisted the idea that justices are politicians in robes and really insisted that they're doing something different. And I think that thinking, in his case at least, carried over into the retirement decision, which he would not want to cast as a wholly political decision. I heard Justice Scalia say this. He said, I don't want somebody appointed who will just reverse everything I've done for the last 25 years. And that will inevitably be in the psychology. There are a lot of blurred things there, and there are many considerations.

They form a hole and make a decision. I don't like making decisions by myself. So, except— Adam, you said a moment ago that Justice Breyer was very invested in making sure his legacy was not undone by a justice of a different ideological flavor. So let's talk for just a moment about Breyer's legacy and the stamp that he left on the high court and on the law. And here I'm going to be very honest and say that Justice Breyer is probably the justice with whom I'm the least familiar. You're not alone. In a poll released just in the past few days, he was the justice about whom the fewest people had opinions. Why is that? Well, you know, he's a bland, older, white guy, a bit of a technocrat, specialized in administrative law. It wasn't for lack of trying.

Justice Breyer was out and about in Washington, and when he went on a book tour, he popped up everywhere. But for whatever reason, he didn't capture the public's imagination. Well, he might not have captured the public's imagination, but he obviously captured a president's imagination because he ended up on the Supreme Court. So what's that story? He was at heart a law professor, a Harvard law professor,

but he also worked in the government quite a bit. He was an antitrust lawyer in the Justice Department. He was in the special prosecutor's office in the Watergate investigation. And importantly, he was chief counsel to the Senate Judiciary Committee. So he had friends there on both sides of the aisle, which helped him get nominated to a federal appeals court. And then... On Friday morning, Associate Justice Byron White announced his retirement

after 31 years on the high court. When President Bill Clinton had his first chance to nominate someone to the Supreme Court... Stephen Breyer is an exceptional human being. I would hope they would go forward with a Breyer nomination. Justice Breyer seemed to be in the lead position. He's certainly a person of high quality, high ethics, and high moral values. And Justice Breyer, I can't help but call him accident prone. He's a kind of Mr. Magoo figure in a way. He had a bad bicycle accident

and he turned up for his interview a little dazed and confused and it didn't go well. President Clinton found him sort of overbearing and didactic and the spot went to Ruth Bader Ginsburg. So he's passed over for Ruth Bader Ginsburg. Correct. And that seemed to be the end of it. He went back to Boston where he was serving on the federal appeals court, and he said, well, I guess I had my shot. I guess I blew it. The Supreme Court's staunchest liberal is expected to announce his retirement today. Justice Harry Blackmun expected to say that he'll leave the bench.

But a year later, a second vacancy opened up on the court, and this time he had a better rapport with President Clinton. He was widely regarded as one of the leading intellects on the federal bench. I asked the Senate to consider and to promptly confirm the nomination of Judge Stephen Breyer as the 108th justice of the Supreme Court. And this time he got the job. I'm glad I didn't bring my bicycle down. So once he gets onto the court, Adam, what kind of justice was he?

He was a conventional moderate liberal. By comparison to the three other Democratic appointees with whom he served, he was slightly more conservative. He voted in a slightly more conservative direction in, say, criminal cases. But there wasn't a huge gap between him and Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. He got to write some major abortion decisions, abortion decisions, including one as recently as 2020, striking down a Louisiana law that would have left the state with a single abortion clinic. He was also, and this is characteristic of him, he really did see both sides of issues. And he would often say, this is a big country. People have lots of different opinions. We have to, on the Supreme Court, take account of that and figure out a way that we can all live together.

And he made that point in a second abortion case in 2000. The opinion of the court number 99830, Stenberg v. Carhart, will be announced by Justice Breyer. Striking down a Nebraska law that banned a procedure that its opponents call partial birth abortion. This case concerns the right to an abortion. We understand the immensely controversial nature of the problem. It was balanced in presenting the clash of values in that case.

Millions of Americans believe that life begins at conception. He said on the one hand millions of Americans believe that life begins at conception. He said, on the one hand, millions of Americans believe that life begins at conception. And that consequently, an abortion is like causing the death of an innocent child. They recoil at the thought of a law that would permit it. On the other hand, he said, Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty, and leading those with least resources to undergo illegal abortions

with attendant risks of death and suffering. And I think that open-mindedness and that sensitivity to trying to reconcile clashing values was characteristic of him. He's a very curious, engaged, and open-minded jurist. So let's turn now to the process of replacing Justice Breyer because it's coming on us very quickly. It's a subject that's already in the past few hours started to consume Washington. What do we know about it so far? Well, for one thing, we might not want to get ahead of ourselves. We're recording this Wednesday afternoon. There's been no formal announcement yet. I would imagine that tomorrow, Justice Breyer will send a letter to President Biden announcing his retirement.

Right. And then that will start the machinery rolling, and the White House will vet candidates, interview them, nominate somebody probably a month from now. The Senate will hold confirmation hearings. And in one version of events, everything will march forward smoothly and we'll have a new Supreme Court justice by early summer. Or maybe things go sideways. We'll be right back. So Adam, speaking of nominations that can go sideways, let's just get this out of the way.

Can Republicans block President Biden's nominee to replace Justice Breyer? Is that within their power? So I cover the Supreme Court. I don't cover Congress, but I have colleagues who do. And they say that no, there is no mechanism for Republicans acting alone to block the nomination. for Republicans acting alone to block the nomination. The filibuster rules don't apply to Supreme Court nominations. And so long as Democrats have their very slight edge in the Senate and they stick together on this, they can confirm a Supreme Court nominee.

Okay, so given that, let's talk about that number of Democrats, 50 of them plus Vice President Harris. On the one hand, that does seem to suggest relatively smooth sailing for President Biden in terms of getting his nominee across the finish line. But on the other, it suggests it could be very perilous because he cannot lose a single vote from a single senator within his party. So presumably he's going to have to pick this Supreme Court nominee very, very carefully. Yes. And that's the pattern that presidents select people with excellent credentials and no hint of scandal in their backgrounds.

And, you know, his goal will be not only to hold his party together, but to do what didn't used to be so uncommon, which is pick up votes from the other party. Justice Breyer himself was confirmed with 87 votes. Even Kagan-Roberts-Alito numbers included members of the opposite party. It's a fairly recent phenomenon that the Senate should be so polarized that you don't have any votes from the other side. So as best you can tell, who's in the running at this moment for the Supreme Court seat? And how might both the thinness of the Democratic majority in the Senate and the fact that Republicans don't vote for Democratic Supreme Court nominees anymore, how does that impact these candidates' potential chances? Well, we know one thing, Michael,

because President Biden during the Democratic primary told us this one thing. I committed that if I'm elected president and have an opportunity to appoint someone to the courts, I'll appoint the first black woman to the courts. Which is he's vowed to nominate a black woman to the Supreme Court. It's required that they have representation now. It's long overdue. And so among black women judges,

attention is really focused on three of them. Perhaps the leading candidate is Ketanji Brown Jackson, who sits on the Federal Appeals Court in Washington, the D.C. Circuit. Harvard College, Harvard Law School, clerked for Justice Breyer. And that kind of legacy can help. You remember probably that Justices Gorsuch and Kavanaugh both clerked for Justice Kennedy. I do. And it was thought that that may have helped hasten Justice Kennedy's departure, the knowledge that he might be replaced by Justice Kavanaugh, of whom he was very fond. And also helpful, and this goes to your point about holding the party together and maybe picking up some votes on the other side,

Judge Jackson was recently confirmed to the D.C. Circuit and picked up three Republican votes, Lindsey Graham, Susan Collins, and Lisa Murkowski. So she has been through the Senate confirmation process and shown that she has bipartisan appeal, which is no doubt very valuable to President Biden. Right. That should give the White House some comfort. Although voting for someone for an appeals court job is not the same as voting for them for the Supreme Court. Right. Okay, who is the second judge who we think is on the president's list? The second candidate that a lot of attention is focused on is Leandra Kruger, who's a justice on the California Supreme Court and had served as the acting principal deputy solicitor general in the Obama administration. The solicitor general's office, of course, presents arguments to the

Supreme Court. So she's known in the Supreme Court, has argued there a dozen times. She also has fancy credentials, Harvard College, Yale Law School, and clerked for Justice John Paul Stevens. So like Judge Jackson, she's in the traditional mold these days of what a lot of presidents are looking for in terms of candidates for Supreme Court nominations. Got it. Okay, and what about the third person? The third person is Michelle Childs. She serves on a federal district court, a trial court, Childs. She serves on a federal district court, a trial court in South Carolina. And to elevate someone from a district court directly to the Supreme Court would be quite unusual and these days unheard of. She also doesn't have an Ivy League background. She has a law degree from the University of South Carolina. But the administration seems interested

in casting its net more broadly. And an indication of that is that Judge Childs has been nominated to the D.C. Circuit herself, which is an indication that the administration might be grooming her. But perhaps it's too soon for this first vacancy in the Biden administration to move someone from a trial court to the appeals court and then immediately to the Supreme Court.

Understood. Would we be remiss if we didn't, Adam, mention the speculation that President Biden could nominate his vice president, Kamala Harris, a black woman, to the Supreme Court? Or do you think that's purely in the realm of speculation? You know, I don't think it's a particularly serious suggestion. Thank you. When you were asked about the vice president possibly being selected as a Supreme Court

nominee, you said you're not going to speak to any considerations. Does that mean she is being considered? The White House press secretary batted it down today, saying that... But the president has every intention, as he said before, of running for re-election and for running for re-election with Vice President Harris on the ticket as his partner. She's got a day job and she will be running with President Biden in 2024. But, you know, she's a lawyer.

She's a black woman. She's a prominent Democrat. I suppose there will be many weeks now where people are throwing around all kinds of ideas. But I don't think at the end of the day, Kamala Harris is going to be on the Supreme Court. Is there anything so far in the backgrounds of any of the women you just mentioned that suggests they could have liabilities or that their nomination might be complicated? So there's no reason to think that there's anything like an authentic problem to say nothing of a scandal in the backgrounds of any of these judges. But the scrutiny that the nominee will undergo will be enormous. Every public statement they made, every client they represented will be closely scrubbed. And people will try to caricature anything they view as a false step. And therefore, however carefully a nominee is vetted, the process will get very intense very fast.

So, Adam, I'm curious how you think the next couple of weeks, this whole process, is going to feel. On one level, it seems like because this is a one-for-one exchange of a liberal wing justice for probably a liberal wing justice, it's not going to change the dynamics of the court, that perhaps the normal ranker of the confirmation process might not be present? Or is that a mistaken assumption? You would hope so. The stakes are obviously lower than in some of the recent confirmation battles. But I think we live in an era where it doesn't matter that there will be political posturing for the sake of political posturing. And it will be unpleasant to watch. It'll be unpleasant for the nominee. It won't be particularly good for the Supreme Court.

And so while I've covered confirmation hearings back to Chief Justice Roberts in 2005, and I used to kind of like them. You got a sense of the nominee on his or her feet and how they answer questions and their knowledge of the law. Things seem to have taken a turn. And the modern contemporary confirmation process is sort of ugly, and I can't say I'm looking forward to it. On that note, Adam, we look forward to covering this process with you

for the next several weeks. Thank you for your time. We always appreciate it. Thank you, Michael. On Wednesday, the Times reported that Senate Democrats plan to carry out the confirmation process of whomever Biden nominates to replace Justice Breyer within about five weeks. That's the same rapid timetable that President Trump used to confirm Justice Amy Coney Barrett in 2020. We'll be right back. Here's what else you need to know today. On Wednesday, in a highly anticipated announcement, officials at the Federal Reserve said they were likely to raise interest rates starting in March in an attempt to lower inflation.

Raising interest rates is the Fed's most powerful tool for cooling an overheated economy because it increases the cost of borrowing and makes consumers more cautious about spending. Fed officials are wagering that raising interest rates will lower consumer spending and therefore bring down the cost of goods. And both Moderna and Pfizer say they are developing a booster shot specifically designed to fend off the Omicron variant of the coronavirus, which has repeatedly broken through traditional vaccines.

Both companies say they are close to testing the boosters on humans, but potential regulatory approval is still many months away. Today's episode was produced by Michael Simon-Johnson, Eric Krupke, and Claire Tennesketter. It was edited by Lisa Chow and Paige Cowett, contains original music by Dan Powell, and was engineered by Corey Streppel. Our theme music is by Jim Brunberg and Ben Landsberg of Wonderly. That's it for The Daily. I'm Michael Bolvaro. See you tomorrow.