Biden’s Court Pick Will Test our Divided System



President Joseph R. Biden, Jr. promised to nominate a Black woman to the country’s highest court.

In an ideal world, the confirmation process for a Supreme Court Justice proceeds cleanly and without delay. The President nominates a candidate who reflects his judicial values. The Senate Judiciary Committee prepares for hearings without bias and votes to recommend a confirmation to the Senate based strictly upon relevant details. At last, the Senators vote, each looking past political motivation to contribute to a time-honored judicial process that transcends party affiliation.

We don’t live in an ideal world. 

Over the coming months, as elected officials, lobbyists, and reporters wade into the fray of the second Supreme Court confirmation process in two years, we will see a different sort of process than that for which the framers of the Constitution hoped. We will witness no orderly debate over the merits of specific judicial values, and the Senate hearings will not serve to determine whether a candidate is qualified. 

Instead, where they should feel a duty to judicial continuity, the Republican leadership will see an opportunity to score political points against the Biden Administration at the expense of whichever candidate the President chooses to nominate. Now again bogged down by a congressional mud-slinging contest, the Biden administration will bear the brunt of political suffocation. 

To avoid this suffocation, the Biden Administration should aggressively seek political success on other fronts, such as infrastructure and foreign policy, all while it works through the nomination process. This way, rather than putting all resources into supporting the President’s nominee and risking political failure, the Administration will be able to fall back onto other successes should the nomination process go south. 

According to Reuters, polling shows President Biden’s approval rating recently dropping to 41%, with voters appearing “increasingly exhausted by the COVID-19 pandemic and its economic toll.” The antidote to voter exhaustion is swift action—if not against the pandemic, then in some other political or economic arena. If Democratic leadership cannot swiftly confirm President Biden’s nominee—no matter how at fault the GOP leadership may be for politicizing an important Constitutional process—President Biden’s approval rating will suffer.

Every step of the confirmation process bears potential political danger to the Biden Administration. Right-wing media figures have already begun to oppose the very notion of a Biden nominee, citing the President’s pledge to nominate a Black woman to the court as a guarantee that his nominee will be unqualified. Conservative commentator Tucker Carlson shamefully used the increased focus on President Biden’s pledge as a vehicle to attack George Floyd’s sister on national television, showing a photo of her on the screen and jeering, “She is not a judge or a lawyer or whatever, but in this case, who cares?” Some Republican senators have indicated opposition to Biden’s nomination process, with Senator John Kennedy deplorably reacting to President Biden’s promise by saying that he wants a nominee “who knows a law book from a J. Crew catalog” and who is “not going to try to rewrite the Constitution every other Thursday to try to advance a woke agenda.” 

While a large number of prominent Republican senators have promised a “respectful confirmation,” the GOP has shown an inability in recent years to maintain political poise while rejecting the more extreme and uncivilized members of its far-right flank. If even a few prominent Republican officials adopt Carlson and Kennedy’s reactionary and disrespectful mindset towards a Black female nominee, the hearings will once again devolve into an arena of political smear. Prominent political figures will behave like schoolchildren to grab a soundbite on Fox News. 

President Biden’s nominee will be overwhelmed with disrespect by media figures and Republican Senators for political advantage. The resulting congressional log jam will be political poison for the Biden Administration. Congressional integrity, the Courts, and the citizenry will all suffer from virulent partisanship. And the march towards progress, now once again stalled by hubris, will go nowhere.