Biden’s SCOTUS Pick: Some Thought Experiments

When Joe Biden won the presidential election in November 2020, liberals across the nation started daydreaming about what Uncle Joe might do to erase the toxic legacy of his predecessor, to make things right (or at least, make them less terrible). There was a lot of (in hindsight, laughably naïve) optimism that Biden’s victory would spell the end of Trump and of Trumpism; that Biden’s talk of reaching across the aisle would actually be reciprocated by a chastened Mitch McConnell and Kevin McCarthy. There was also a lot of talk about the possibility of Biden taking more radical, less traditional (but nonetheless legal) steps toward shifting the balance of power toward the liberal/progressive side.

One of my daydreams (not anything I thought would actually happen, of course) was that the Democrats would get rid of the “filibuster” in the Senate, thus opening the door for a myriad of reforms, including expansion of the Supreme Court. I imagined President Joe Biden grinning his signature grin from behind his Ray-Ban aviators as he announced an expansion of SCOTUS from nine to 13 seats, with the additional four seats being occupied by three African-American women and a belated Merrick Garland (who was so cruelly snubbed when Senate Majority Leader Mitch McConnell (R-Moscow) refused for nearly a year even to give him a hearing when President Barack Obama nominated him in 2016 to fill the late Antonin Scalia’s seat). Let the Republicans complain about “court-packing” and Democratic overreach; let them try to expand the Court further should they ever regain power. At least in the short term we would have a SCOTUS far less likely to cradle-strangle any near-term legislative or policy initiatives.

Of course, none of this happened, although Garland was nominated and confirmed as Biden’s Attorney General, which is not nothing.

But now, with the impending retirement of liberal Justice Stephen Breyer, and a Senate still barely controlled by the Democrats, Biden has an opportunity to make good on one of his most specific and emphatic campaign pledges: to put a Black woman on the Supreme Court. This is something that has never been done, not once, in the 232-year history of the Court.

A fair bet is that Biden will nominate one of a handful of well-known and well-regarded African-American jurists, possibly Ketanji Brown Jackson (a circuit judge on the United States Court of Appeals for the District of Columbia Circuit) or Leondra Kruger (Associate Justice for the Supreme Court of California). While no nominee is likely to sail smoothly through the confirmation process (things being as rancorous as they are nowadays), the worst-case scenario is a divided Senate (with all 50 Republicans voting no and all 50 Democrats and Independents voting yes), with the tie-breaker cast by Vice President Kamala Harris, herself a woman of color.

Which leads me to a couple of thought experiments. The US Constitution is famous both for its brevity and for certain gaping holes that could, under the right circumstances, lead to either head-scratching conundrums or outright Constitutional crises. How might Uncle Joe make good on his pledge (which will be historical even in the most straightforward circumstance) and provide dramatic fodder worthy of a Hollywood political thriller? Here’s a couple of interesting scenarios:

Scenario 1: Supreme Court Justice Anita Hill

Those old enough will remember the insane drama associated with then-Appeals Court Judge Clarence Thomas, who was nominated to SCOTUS way back in 1991 by President George H. W. Bush. (Thomas is now the longest-serving sitting Justice on the Supreme Court, and with the retirement of Breyer, the oldest, at 73. He’s also only the second African-American to serve on the Court, having succeeded liberal Justice Thurgood Marshall.) 

Thomas’s nomination process was overshadowed by the testimony of Anita Hill, a former subordinate of his at both the US Department of Education and the Equal Employment Opportunity Commission (EEOC), whose bombshell accusations included that Thomas sexually harassed her and engaged in lurid discussions of pornography and his own sexual prowess. Hill’s testimony was not taken as seriously as such things might be taken nowadays, and it doesn’t help matters that the confirmation hearings were chaired by then Democratic Senator Joe Biden of Delaware. Obviously, Thomas was ultimately confirmed, but Hill’s allegations have put a stain on both his and her reputations for the last 30 years. 

There is no requirement that Supreme Court Justices be actual judges (current Associate Justice Elena Kagan, for example, was never a judge, although she had strong legal bona fides). Anita Hill (who holds a degree from Yale) went on to have a long career as a law professor and outspoken advocate for women’s rights. There’s no Constitutional reason President Joe Biden could not nominate Professor Hill to the Court. On the upside, Biden could make good on his pledge to put a Black woman on the Court, make conservative heads explode, and use the opportunity to say sorry and to reaffirm his sensitivity to women’s concerns about sexual harassment and discrimination in the workplace. On the downside, Hill would be open to criticism that there are better qualified female African-American jurists. She would also, inevitably, be forced to relive, through her own confirmation process, the whole Thomas affair, with bloviating yahoos like Louisiana Senator John Neely Kennedy leading the charge. Finally, legitimate questions would be raised about the strategic wisdom of naming a 65-year-old woman to the Court just to troll the final years of Clarence Thomas. But, oh, how juicy it would be!

Scenario 2: Supreme Court Justice Kamala Harris

Vice President Kamala Harris is an ambitious politician. There’s no hiding the fact that she wanted, during the 2016 primary, to be the Democratic nominee for president. She settled for being Joe Biden’s running mate, and is now the country’s first woman, first Black, and first Asian-American Vice President. VP Harris is a heartbeat away from succeeding a 79-year-old man who currently holds the most stressful job on the planet. It’s not inconceivable that Harris could assume the presidency before the 2024 election cycle. And if Biden decides not to run in 2024 (when he’ll be a truly unprecedented 83-year-old president!), Harris would likely be at the top of the Democratic ticket.

But…

Harris has abysmal polling. Her approval ratings are below any of her recent predecessors (including Trump-tool-turned-reluctant-patriot Mike Pence). Granted, Joe Biden himself suffers from low favorability, doing worse than any recent president except his immediate predecessor. I happen to think this has less to do with job performance than it does about our country’s current hyper-partisanship, but I also think that an identical man in Harris’s position would be polling better. I think a Harris presidential candidacy would suffer at the hands of racism and misogyny, which is not fair, but is something the Democrats need to think hard about if they have any near-term hope of controlling any branch of the federal government. (Right now it looks like the GOP will take back both the House and the Senate come January 2023.) In short, I think it is incredibly unlikely (albeit unjust) that Kamala Harris will ever be elected to the presidency.

Nonetheless, there is a way Harris could continue to make history and have a better chance of making a long-term mark on our political landscape, and that is to allow Joe Biden to put her name forward as Breyer’s SCOTUS replacement, stepping down as Vice President and opening the way for a 2024 Biden running mate (or heir apparent) who might do better in polling.

There’s no doubt Kamala Harris would be confirmed were she to be nominated, but it could lead to the awkward spectacle of unified GOP Senators forcing a tie vote for her confirmation—a tie vote that would have to be cast by Harris herself! Still, the feat would be accomplished, with Kamala Harris becoming the first Black woman and first woman of Asian descent to sit on SCOTUS.

On the downside, there would be a shadow over her tenure on the Court if she were forced to cast that fateful tie vote. But the bigger complication would be in approving her successor to the Vice Presidency. Historically, VP vacancies are either not filled or not promptly filled. Until the Twenty-Fifth Amendment to the Constitution was ratified in 1967, the Constitution was silent on what should happen should a vacancy in the Vice Presidency arise. 

In any event, today the Constitution has a clear and relatively straightforward process. The President nominates a new Vice President, who must then be approved by simple majorities in the Senate and the House.

But…

There’s that current 50/50 split in the Senate. If Republican Senators hold a firm line, they could prevent a simple majority approval of a new VP, and with no sitting VP, there would be no one to cast the tie-breaker. So, although a Democratic-controlled House would easily confirm Biden’s VP nominee, Republicans could deny him or her indefinitely in the Senate. Now, there are Senate rules in place that allow everyday functioning in the absence of a VP, but there is no substitute for an actual VP when it comes to the tie-breaking power, which means Biden would kiss goodbye any legislative agenda for the second half of this term. And that is why he is unlikely to name Kamala Harris to the Supreme Court, where she could arguably do more good for a longer period of time. Instead, she is faced with the difficult prospect of a continued unpopular Vice Presidency and a bitter, uphill election cycle in 2024, 2028 at the latest. Unless the perceived success of the Democrats improves dramatically over the next couple of years, it’s hard to see a presidential nominee Harris coasting to an easy electoral victory.

Scenario 3: But Wait, There’s More!

There’s been some kvetching amongst the punditry about how Biden’s SCOTUS pick won’t make much difference; after all, he’s only preserving one of three liberal spots, with six fairly reliable conservatives currently dominating the direction of the Court. That’s likely to stay true, but not necessarily. I mentioned earlier that with Breyer’s retirement, arch-conservative Clarence Thomas will become the oldest sitting Justice. It’s not inconceivable that a 73-year-old man could die unexpectedly, or encounter some sudden physical disability that would render him unable to function at the level required of a Supreme Court Justice. I’m not wishing anything bad for Justice Thomas; I’m just pointing out that no one should take for granted the current conservative preponderance on the Court. As we learned from the example of the late Ruth Bader Ginsberg, things can change quickly and affect the balance of power, and these are the kinds of things Democrats cannot afford to take their eyes off of. Thomas’s actuarial prospects through 2028 are even dimmer (we’re just talking cold facts here; neither are Joe Biden’s!), so if the Democrats can hold the presidency into the 2025-2029 timeframe, the liberal presence on the Court might be bolstered even further.

As I said earlier, these are just (to me) interesting thought experiments. An African-American woman on SCOTUS looks like a sure thing right now, and I wish the best of luck to whoever she is.

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