Democrats on the Senate Judiciary Committee are urging President Biden to speed up his process for picking a nominee to the Supreme Court so that nothing is left to chance in a 50-50 Senate where one medical emergency is already putting a strain on the Democrats’ narrow majority.
Senate Judiciary Committee Chairman Dick Durbin (D-Ill.), who met with Biden at the White House on Thursday, says he wants to get started on the confirmation process as soon as possible.
Durbin said he wants Biden to “do it soon.”
“I think we understand the importance of the responsibility we have and we’re anxious to get this Senate moving forward. We started to pick up speed recently and we want to continue that,” he said.
Sen. Richard Blumenthal (D-Conn.), another member of the Judiciary Committee, said he wants Biden to “move as promptly as possible.”
“I’m impressed with all of the potential nominees that have been named so far. I think they all have really compelling personal life stories and immensely impressive qualifications,” he said.
Senate Democrats aren’t trying to nudge Biden toward one particular nominee or another, but they are pushing him not to delay much longer in putting forth a name.
“I think time is really urgent,” Blumenthal added. “We need to move forward quickly but fairly.”
Senate Democrats were thrown a curveball earlier this month when Sen. Ben Ray Luján (D-N.M.), a 49-year-old freshman lawmaker, suffered a stroke. A senior aide later announced that he would likely miss four to six weeks of work, effectively shrinking the Democratic caucus to 49 members.
The medical emergency reminded Senate Democrats of how precarious their majority is, and that control of the Senate floor and schedule cannot be taken for granted.
But Senate Democrats were hoping to move quickly even before Luján announced his extended absence.
Senate Majority Leader Charles Schumer (D-N.Y.) was looking at moving Biden’s nominee on an accelerated timeline — a move similar to what Senate Republicans used to confirm conservative Justice Amy Coney Barrett to the Supreme Court in October 2020.
Barrett was confirmed 30 days after then-President Trump nominated her to replace late Justice Ruth Bader Ginsburg.
Immediately after Justice Stephen Breyer announced his retirement, Schumer said on Jan. 26 that his successor “will be considered and confirmed by the full U.S. Senate with all deliberate speed.”
Biden then put the brakes on what looked like was going to be a lightning-fast process by announcing the following day, Jan. 27, that he would pick a nominee by the end of February.
Democratic lawmakers took that in stride, but their anxiety rose when they found out a few days later that Luján had suffered a stroke and had undergone decompressive surgery. The senator checked himself into a hospital the morning of Jan. 27 after suffering dizziness and fatigue — the day after news broke that Breyer would retire.
Most Democratic senators didn’t find out about Luján’s emergency until days later, though Schumer told reporters that he had known about it ahead of time and didn’t learn of the situation through the media.
With a real opportunity to confirm a liberal justice to the Supreme Court for the first time since 2010, (not counting former President Obama’s failed effort to put then-Judge Merrick Garland on the high court in 2016) Senate Democrats don’t want to waste any time locking in Breyer’s replacement.
Steve Jarding, a Democratic strategist and former Democratic Senatorial Campaign Committee adviser, said Democrats are still haunted by the memory of Senate Minority Leader Mitch McConnell (R-Ky.) holding open the seat of the late Justice Antonin Scalia for nearly a year by refusing to give Garland a hearing or a vote.
“I think the biggest issue would be the fear that Republicans could find ways to slow this down. Democrats lived through a situation where they had what seemed like a ton of time on the clock, and pretty soon the clock ran out and Obama didn’t get his pick. I know circumstances were different but the history is still pretty fresh,” he said. “Like Sen. Luján, what if something happened?”
Senate Democrats also see a political need to show forward momentum on a high-profile issue after they spent months working on Biden’s Build Back Better agenda and voting rights legislation — two issues dear to the party’s liberal base — and came back empty-handed.
“I think it’s important to move forward, I think there’s momentum here,” said Marge Baker, the chief strategist on judicial confirmations at People for the American Way, a liberal advocacy group.
“My assumption is the president and his staff have been looking at this for a long time because he had some idea of what he wanted to do when there was a vacancy. There is a deep bench [of candidates] that they’re going to so why wait?” she added.
While Republicans can’t block Biden’s nominee, they can drag out the confirmation process by using various procedural tactics. And if Democrats lost a vote in their caucus because of an extended absence, there’s no guarantee that they would be able to discharge the nominee onto the floor or ultimately confirm her.
The Senate Judiciary Committee’s rules state that nine members of the panel, including two members of the minority, must be present in order to transact business and no bill or nominee shall be ordered reported from the committee unless a majority of the committee is present.
This raises the possibility that Republicans could try to drag things out with procedural tactics, such as boycotting committee meetings to deny the Democrats a quorum.
Sen. Josh Hawley (R-Mo.), a conservative member of the Judiciary Committee, warned last month that he and other Republicans aren’t inclined to let the nominee zip through the vetting process.
“This process needs to be thorough, and it needs to be serious,” he told reporters last month. “This is a 50-50 Senate, so they’re not going to be able to ramrod anybody through.”
The potential for Republican obstruction has fueled speculation that Biden may tap J. Michelle Childs, a federal judge for the district of South Carolina, who has the support of Sen. Lindsey Graham (S.C.), an influential senior Republican on the Judiciary Committee.
Graham’s support would greatly increase the likelihood of the Biden’s nominee making it to the floor without much delay and getting bipartisan support for a final confirmation vote.
Labor groups, however, are pushing back against Childs’s potential nomination, citing what they view as her past work for a law firm that defended employers from civil rights and labor law claims.
Graham said last month that he “can’t think of a better person for President Biden to consider” and praised her as “fair-minded” and “highly gifted.”
Speaking to reporters Wednesday, Graham praised Childs’s background as the daughter of a police officer and a graduate of the University of South Carolina School of Law.
“I think we could get a good vote from Republicans if she did well at the hearing,” he said.