Joe Biden may be the first president in US history to make a campaign pledge to nominate someone of a particular background to the Supreme Court if elected.
Late in the Democratic primary campaign in 2020, Biden pledged during a debate that if he got the chance, he would nominate the first-ever Black woman to serve on the nation’s highest court.
Biden won praise for the statement, and certainly it is overdue.
However, as liberal Justice Stephen Breyer let it be known he will leave the court this summer, two other qualities may factor just as much into Biden’s thinking.
First, his nominee must be young. Second, she must be easily confirmable with no surprises.
In recent decades, youth has emerged as a factor for presidents weighing their options for Supreme Court picks. An appointment to the Supreme Court is for life, so the younger the nominee, the longer lasting a president’s impact will be on the Court. So finding the right balance between a credible amount of experience and youth has become something to consider. None of the last nine Supreme Court justices added to the court were older than 55 years old.
The thing is: Biden doesn’t have a lot of youthful choices.
The place where presidents usually go for their picks is at the federal appellate court level. Twelve of the last 13 Supreme Court justices added to the court came from appellate courts. (Elena Kagan is an exception: She previously served as solicitor general.)
There are currently 10 Black women serving on appellate courts, five of whom were nominated last year by Biden and confirmed. (Another three are awaiting confirmation.) Five of those 10 are over 68 years old.
This not giving Biden a lot of options if he goes the traditional route. Then again, there is nothing saying he has to.
But one advantage to going the traditional route of an appellate court judge is that they have been already confirmed by the Senate. This potentially makes the road to a Supreme Court confirmation a lot easier, and, at the very least, any obvious background issues would already be known.
There are three reasons why Biden has to pick someone who can be easily confirmed.
First, there is no room for error when the Senate is 50-50 and already Biden has seen how powerful a few senators can be when they are willing to buck their party.
Second, the window to confirm the next nominee is tight. Several news organizations have reported that Breyer will leave the court sometime after the current session ends in June. Odds are good that Republicans could take over the Senate roughly seven months after that, giving them the ability to block Biden from putting any nominee on the court.
Seven months isn’t a lot of time, but then again former president Donald Trump put Amy Coney Barrett on the court in 34 days. The average time that a nominee has gone from being nominated to confirmed is roughly double that in recent decades. (There is nothing stopping Biden from nominating someone before Breyer leaves the court.)
Third, Biden ran a campaign promising to be competent. Any move — whether a bad withdrawal from Afghanistan or a gaffe or a failed Supreme Court pick — would run counter to the brand Biden is trying to build as president.
So the challenge isn’t just that Biden must keep his promise to pick a Black woman, but he must choose someone who is young and could easily be confirmed. Though Biden has made some progress in diversifying the federal courts, Black women today make up just three percent of the federal judiciary.
But for now, he only needs one nominee.