Biden to nominate Black woman by end of February to replace retiring Supreme Court Justice Breyer

Supreme Court Justice Stephen Breyer announced Wednesday that he would retire, reigniting a debate on judicial philosophies like constitutional originalism as President Biden considers candidates to nominate to the nation's highest court.

While Americans associate originalism with the Republican Party and former President Trump, the philosophy is compatible with liberal and Democratic values, experts say. Some legal experts and professors called on Biden to nominate an originalist to replace Breyer, while a critic called the issue a "red herring."

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Fox News White House correspondent Peter Doocy discusses Biden’s announcement promising to replace Justice Breyer’s spot by February on ‘Special Report.’

Former Housing and Urban Development Secretary Dr. Ben Carson blasted President Biden on Thursday for making identity politics a factor in his choice for a Supreme Court justice.

Biden said Thursday that he will announce his nominee to replace retiring Supreme Court Justice Stephen Breyer before the end of February, and that the candidate will be a Black woman.

"You know, this is America," Carson said during an interview on WMAL's "The Vince Coglianese Show," a local radio show in Washington, D.C.

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Sen. Mazie Hirono, D-Hawaii is urging her Republican colleagues to be "open-minded" when it comes to President Biden's Supreme Court nominee. 

Following the official announcement of Justice Stephen Breyer's retirement on Thursday, Hirono appeared on CNN and praised Biden's vow to nominate a Black woman to the highest court in the land, calling the pick "so important" since she will "reflect the diversity of the court," which she suggested did not reflect the "diversity" of the country in various 6-3 rulings. 

"What I have always looked for in all of the judicial nominees, because these are lifetime appointments, is someone who can be fair and impartial and not having an ideological ax to grind, which was mainly the kind of nominees that President Trump sent to us, including, by the way, as far as I’m concerned, the three Supreme Court nominees or now justices," Hirono told CNN anchor Victor Blackwell. 

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"The President and I will work closely together on this and the selection process and the president will make his choice about who will be the next person to fill Justice Breyer's seat," Vice President Harris told reporters on Thursday, adding that the president has specifically told her that she will help advise him.

House Majority Whip James Clyburn told 'Your World' that fellow South Carolinian J. Michelle Childs may receive bipartisan support if nominated by President Biden to the Supreme Court

White House press secretary Jen Psaki declined to comment on details behind the retirement of Supreme Court Justice Stephen Breyer during a press conference Thursday.

Asked when the president was made aware of Breyer's decision to retire, Psaki said only that the administration had no influence over his choice."

This was Justice Breyer's decision to make, on his own timeline and through his own conditions he determined," Psaki said of Breyer's retirement.

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House Majority Whip James Clyburn confirmed Thursday that he pushed President Biden to nominate a Black woman to the Supreme Court and floated a possible candidate that he would like to see appointed. Rep. Clyburn played an instrumental role in helping Biden secure the Democratic nomination for president. 

"Not a single time has a Black woman ever been seriously considered," the South Carolina Democrat told the Washington Post. "And so I took that issue up with then candidate Biden back in 2020. Twenty that I thought that the time of the right for us to do something about that. How many times have you heard it said that black women are the backbone of the Democratic Party?"

Clyburn continued, "Well, you just can't say you've got to show it. I happen to have been born and raised in the past, and I believe it's their deeds that matter, not their words. And so President Biden made it a commitment at the Charleston debate back in February. Two years ago, and said that if he got the opportunity, he would appoint or nominate an African-American woman to serve on the court."

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President Biden said Thursday that he will announce his nominee to replace retiring Supreme Court Justice Stephen Breyer before the end of next month, and that the candidate will be a Black woman.

"I've made no decision except one: The person I will nominate will be someone with extraordinary qualifications, character, experience and integrity. And that person will be the first Black woman ever nominated to the United States Supreme Court," Biden said. "It's long overdue, in my view."

Biden added: "It is my intention… to announce my decision by the end of February."

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From Fox News' Ronn Blitzer:

Supreme Court Justice Stephen Breyer officially notified President Biden of his intent to resign at the end of the court’s current term.

In a letter dated Jan. 27, Breyer specifically expressed his desire to have his successor lined up before he steps down.

"I am writing to tell you that I have decided to retire from regular active judicial service as an Associate Justice of the Supreme Court, and to serve under the provisions of 28 U.S.C. 371(b)," Breyer wrote, referring to the statute dealing with retired justices and their ability to continue collecting a salary. "I intend this decision to take effect when the Court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed."

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President Biden's major priorities were stymied by the 50-50 Senate repeatedly during his first year in office – but barring something unforeseen, the president may be poised for a big Senate win in his effort to replace retiring Justice Stephen Breyer. 

"During the first year, I don't think that Biden lost any Democrats on any vote for judicial nominees," University of Richmond law professor Carl Tobias told Fox News. "And so it seems to me that they are likely to hold together depending on who the nominee is." 

With the threshold to confirm a Supreme Court justice at 51 votes, that's all Biden needs to get his yet-to-be-named nominee across the finish line. 

The two moderates who've most commonly frustrated Biden are Sens. Joe Manchin, D-W.Va., and Kyrsten Sinema, D-Ariz. But their records indicate they're more likely to support Biden's high court pick than not.

...

Even if Biden appears at risk of losing Sinema or Manchin, there are three Republicans who voted for more than 80% of Biden's judicial nominees so far, according to FiveThirtyEight. They are Sens. Lindsey Graham, R-S.C., Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska. 

All three have long supported the idea that senators should deeply research judicial nominees but generally give deference to the president's picks. 

...

Another reason why Biden may have a relatively easy time getting his justice across the finish line, according to Tobias, is that Republicans might not attack the president's nominee as aggressively as Democrats did to Kavanaugh. 

"It may be the Republicans just are willing to give him this one because the person isn't that liberal… or there just isn't that much mileage to be gained from beating on somebody who's going to be confirmed anyway," Tobias said. "And they may want to stick with the issues… they think are winners. So why go out of your way and you may alienate a lot of people for no good reason?"

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With the retirement of Supreme Court Justice Stephen Breyer, President Joe Biden was immediately challenged by Democrats to make good on his pledge during the 2020 presidential campaign to only consider black females for his first vacancy on the Court. 

When he made that pledge, some of us raised concerns that he was adopting a threshold racial and gender qualification for the Court. That claims were immediately challenged by liberal commentators and their authority was somewhat surprising: Ronald Reagan. 

They insisted that Ronald Reagan made the same pledge to only consider a woman for his first vacancy. The claim is false and indeed the Reagan example shows why Biden's pledge was both unprecedented and unnecessary.

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Justice Stephen Breyer addresses his decision to retire from the U.S. Supreme Court.

Sen. Kyrsten Sinema, D-Ariz., said Thursday that she will thoroughly look into any person President Biden nominates to replace Justice Stephen Breyer, who plans to retire this summer.

"As with all nominees and as I did during the 2020 Supreme Court nomination, I look forward to fulfilling my constitutional duty to provide advice and consent by thoughtfully examining the next nominee based on three criteria: whether the nominee is professionally qualified, believes in the role of an independent judiciary, and can be trusted to faithfully interpret and uphold the rule of law," Sinema said.

Sinema is a moderate who is not always a reliable vote for Biden and Democrats on legislation. But she's overwhelmingly backed the president's nominees for executive and judicial posts.

Other potential swing vote senators to watch are Sens. Joe Manchin, D-W.Va., Susan Collins, R-Maine, Lisa Murkowski, R-Alaska, and Lindsey Graham, R-S.C.

Senate Minority Leader Mitch McConnell, R-Ky., Thursday urged President Biden to "govern from the middle" when choosing his nominee to replace retiring Supreme Court Justice Stephen Breyer.

"[T]he American people elected a Senate that is evenly split at 50-50. To the degree that President Biden received a mandate, it was to govern from the middle, steward our institutions, and unite America," McConnell said.

"The President must not outsource this important decision to the radical left. The American people deserve a nominee with demonstrated reverence for the written text of our laws and our Constitution," he added.

It's notable that Republicans are not saying they intend to try to completely block a Biden Supreme Court nominee. But the statement from McConnell -- and a similar one from Judiciary Committee Ranking Member Chuck Grassley, R-Iowa -- appear to be setting clear boundaries for what Republicans may accept in a nominee from Biden.

Those statements may be setting up a pretext for widespread opposition to a Biden nominee by Republicans.

Senate Judiciary Committee Ranking Member Chuck Grassley, R-Iowa, said Thursday that the nominee President Biden selects to replace retiring Justice Stephen Breyer must be in the "legal mainstream."

"I congratulate Justice Breyer on his long, distinguished service to our country. He is widely respected for good reason, and I’ve personally held him in high esteem throughout his service on the court," Grassley said. "I supported his confirmation to the Supreme Court in 1994 alongside a vast majority of my colleagues."

Grassley added: "Justice Breyer’s successor should be an individual within the legal mainstream who can receive similar broad, bipartisan support. Such a candidate will preserve faith in the court, and reflect Americans’ will when they elected an evenly divided Senate."

Grassley has a history of supporting some significant Democrat judicial nominees. But his emphasis on the evenly divided Senate and bipartisan support may be laying the groundwork for widespread GOP opposition to a Biden nominee who allegedly may be out of the "legal mainstream."

Supreme Court Justice Stephen Breyer Thursday said he's optimistic about the future of the American experiment in an address announcing his retirement from the high court. And he called on young people in the "next generation" to "pick justice up."

"Something I enjoy is talking to high school students, grammar school students, college students, even law students, and they'll come around and ask me, 'What is it you find particularly meaningful about your job? What sort of gives you a thrill?" Breyer said.

"What I say to them is... it's a kind of miracle when you sit there and see all those people in front of you. People that are so different in what they think. And yet they've decided to help solve their major differences under law," Breyer continued. "And when the students get too cynical, I say go look at what happens in countries that don't do that."

"I'll tell you what Lincoln thought, what Washington thought, and what people today still think, is it's an experiment," Breyer added, speaking about the United States. "I say [to students], I want you to pick justice up. It's an experiment that's still going on. And you know who will see whether that experiment works? It's you, my friend. It's you Mr. high school student, it's you Mr. college student, it's you Mr. law school student."

Breyer added: "It's that next generation and the one after that. My grandchildren and their grandchildren. They'll determine whether the experiment still works. And of course, I'm an optimist, and I'm pretty sure it will."