The pending retirement of Justice Stephen Breyer will give President Biden the rare opportunity for a Supreme Court nomination, and at New York I examined the lopsided record of recent opportunities to shape the Court.
Assuming President Joe Biden’s nominee to replace retiring Supreme Court Justice Stephen Breyer is confirmed, it will be only the fifth time that a Democratic president has added a member to the Court since the administration of Lyndon B. Johnson. That’s right — the roster of Democratic-nominated Supreme Court justices during the last ten presidencies is short: Ruth Bader Ginsburg and Stephen Breyer, by Bill Clinton; and Sonia Sotomayor and Elena Kagan, by Barack Obama. To date, these Democratic-nominated justices have served a total of 67 years on the Court. During the same time frame, there have been 15 Supreme Court justices nominated by Republican presidents, serving a total (to date) of 292 years.
This lopsided record is partially, of course, attributable to Republican success in presidential elections since 1968. And Obama nominee Merrick Garland’s non-confirmation was a matter of partisan malice; Mitch McConnell, who controlled the Senate at the time, denied him even a confirmation hearing. Other whiffs involved bad luck. In his one term as president, Donald Trump had the opportunity to name three justices (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett). In his one term, George H.W. Bush named two justices. One of them, David Souter, served for 19 years. The other, Clarence Thomas, is still on the Court 13 years after Bush’s son left the White House. Yet Democrat Jimmy Carter had not a single Supreme Court appointment. Barring something unforeseen, Joe Biden should at least avoid that fate.
Opportunities to put new members on the Court are becoming rarer. One bipartisan trend in recent decades has been the nomination of younger jurists whose lifetime terms will presumably be longer. During the last ten presidencies, four justices ascended to the Court before reaching the age of 50. All of them (William Rehnquist, Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett) were nominated by Republican presidents. Rehnquist was on the Court for 33 years. The other three are on the Court right now.
So Democrats have some catching up to do, and Biden knows he’d better get it right, not only by redeeming his pledge to place the first Black woman on the Court, but by choosing someone fully vetted and prepared to serve for a long, long time.