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With SCOTUS Justice Breyer retiring,...

With SCOTUS Justice Breyer retiring, President Biden has two criteria for nominating a replacement: race and sex

By: Frank Corder - January 27, 2022

Supreme Court justice Stephen Breyer, left, is seated with Vice President Joe Biden and first lady Michelle Obama host an event honoring Jewish American Heritage Month in the East Room of the White House in Washington, Thursday, May 27, 2010. (AP Photo/Charles Dharapak)

Biden has pledged to appoint a black woman to the bench. Whoever it is, Democrats have the votes to confirm the nominee.

On Wednesday, U.S. Supreme Court Justice Stephen Breyer handed liberals a gift, announcing his retirement while one of their own occupies the White House.

Rumors of Justice Breyer’s pending retirement from the Court have been swirling for years. Democrats wanted him to wait to make the move until they won the Presidency, and when they did, some in the party began calling for Breyer to step down to allow President Joe Biden to name a successor within days of being sworn in.

Breyer, 83, was nominated by former President Bill Clinton and assumed his seat on the bench in 1994. He is currently the oldest serving member on the 9-person Court. He will step down at the end of the current term.

The notable news, however, is not that Breyer is departing, but who President Biden will nominate to fill the vacancy. Whomever President Biden picks will surely align with his political philosophy and will not change the balance of the Court as Breyer is among the liberal minority.

Thus far, Biden has pledged to use two primary criteria in his consideration of a nominee: race and sex.

During his 2020 presidential campaign and a Democratic candidate debate, Biden pledged to name a black woman to the Supreme Court.

“We talked about the Supreme Court. I’m looking forward to making sure there’s a Black woman on the Supreme Court to make sure we in fact get every representation,” Biden said.

Once the nomination is made by the President, the U.S. Senate will hold hearings to vet the nominee, digging through their backgrounds and public statements ahead of a full Senate confirmation vote.

While the chamber is split 50-50 between Democrats and Republicans, Vice President Kamala Harris is the tiebreaking vote. There is precedent to have nominees merely gain a simple majority vote to be confirmed, avoiding the filibuster rule.

Republican Senate Leader Mitch McConnell made that change in 2017 with the appointment of Neil Gorsuch. It is expected that Democrat Senate Leader Chuck Schumer will use the same process, with a straight party line vote all that will be needed to confirm whomever President Biden nominates.

About the Author(s)
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Frank Corder

Frank Corder is a native of Pascagoula. For nearly two decades, he has reported and offered analysis on government, public policy, business and matters of faith. Frank’s interviews, articles, and columns have been shared throughout Mississippi as well as in national publications such as the Daily Caller. He is a frequent guest on radio and television, providing insight and commentary on the inner workings of the Magnolia State. Frank has served his community in both elected and appointed public office, hosted his own local radio and television programs, and managed private businesses all while being an engaged husband and father. Email Frank: