Easter SCOTUS confirmation in doubt as Biden deliberates
A nominee this week "would be optimal, but not likely,” said Senate Majority Whip Dick Durbin, chair of the Judiciary Committee.
Senate Democratic leaders are racing to confirm President Joe Biden’s Supreme Court pick before Easter. That timeline could get murky, particularly if Biden picks a nominee who has never been through the Judiciary Committee.
Biden may begin interviews with potential candidates as early as this week, though senators are not anticipating him to announce his choice imminently. Supreme Court Justice Stephen Breyer disclosed plans to retire nearly three weeks ago, and Democrats are eager to begin reviewing his replacement.
A nominee this week "would be optimal, but not likely,” said Senate Majority Whip Dick Durbin (D-Ill.), chair of the Judiciary Committee, in an interview Monday. “The president is still interviewing.”
If Biden names a nominee who has not been processed through committee, such as California Supreme Court Justice Leondra Kruger, he would likely need to name that pick this week to meet the self-imposed Easter deadline, according to a staffer familiar with the matter. Durbin said Monday that “clearly” it will take longer to vet Kruger since, unlike other top contenders such as Judges J. Michelle Childs and Ketanji Brown Jackson, she has not yet appeared before the panel.
“The other two leading nominees have either been through the process or are in the process,” Durbin said.
Childs is currently Biden’s nominee to fill a vacancy on the D.C. Circuit Court of Appeals, while Jackson was confirmed to that court last year. Should he choose Jackson for the Supreme Court, that would open up another vacancy on the powerful appellate court, while Childs’ elevation to the Supreme Court would open up a District Court seat and require the White House to find another D.C. Circuit nominee.
As Biden weighs his decision, the Senate Judiciary Committee is starting to staff up. So far, the Democrats on the committee have hired two additional staff counsels and more hires are expected, according to the staffer familiar with the matter.
Sen. John Cornyn (R-Texas), a longtime member of the Judiciary Committee, noted that whoever Biden nominates will need to go through an FBI background check. He also predicted that picking someone who has already been through committee wouldn’t “substantially change the timeline because everybody sort of views the Supreme Court as a unique judicial job.”
“It might speed it up a little, but everybody’s going to want to still go through the kabuki,” Cornyn said.
Democrats are trying to meet the standard the GOP set when confirming Justice Amy Coney Barrett in 2020, which took about a month from the time she was nominated as Republicans raced to confirm her before the presidential election. And it helped that the Judiciary Committee vetted her for a judgeship on the Seventh Circuit Court of Appeals in 2017, just three years before she was confirmed to the Supreme Court.
On Sunday, Sen. Ben Ray Luján (D-N.M.) posted a video in which he said he will return to the 50-50 Senate in a “few short weeks” and that he would be voting on the next Supreme Court justice. Once Luján returns, Democrats can confirm a nominee without any GOP votes.