Biden Was Smart to Make the Obvious Supreme Court Pick

Biden Was Smart to Make the Obvious Supreme Court Pick

Surprise personnel picks might generate excitement, but dangling Ketanji Brown Jackson’s name before announcing her nomination created space for beneficial public vetting.

No surprises.

Photographer: Drew Angerer/Getty Images

The Senate Judiciary Committee is acting quickly on the Supreme Court nomination of Ketanji Brown Jackson, President Joe Biden’s choice to replace Justice Stephen Breyer. It will hold hearings beginning on March 21, which should put her on track for a final Senate vote in April, some two months after she was selected.

This is a reminder of two of Biden’s key traits as president, both of which are generally strengths. One is his insistence on inclusion. The Biden presidency continues to be a historical outlier in its demographic diversity, something that he’s achieved with relatively little fuss. It’s likely that any Democratic president elected in 2020 would have nominated more women and more Black, Latino and Asian citizens to various posts — including the judiciary — than any previous president, but Biden deserves credit nevertheless. He appears to see it, correctly, as a source of strength to choose from a wider and deeper pool.

The other strength is that Biden doesn’t mind making unsurprising personnel selections. I’m afraid I didn’t make a note of who said it, but one pundit predicted that Biden would take his time and then eventually go with Jackson, just as he waited for awhile before settling on Kamala Harris to be his vice presidential running mate. The same has been true with his Federal Reserve choices, and was true, too, of his choice of Ron Klain to be White House chief of staff.

Unexciting picks aren’t always good ones, but presidents who like to stir things up and surprise the press corps tend to rule out perfectly solid options just because they won’t generate as much news as an unexpected pick. Moreover, leaking out names as trial balloons may sap some of the thrill generated by strict secrecy, but going (semi) public generates effective public vetting.

And Jackson is obvious, for a mainstream liberal Democratic president, for all the right reasons. As a judge on the U.S. Court of Appeals in Washington, she has probably the single best conventional qualification possible. She was recently confirmed with a bit of bipartisan support, making it likely she’ll at least hold all 50 Democrats this time. She meets the biggest partisan qualification by being a youngish 51 years old.

I did see some complaints that Biden took too long to make the selection, given the risks involved in the slim Democratic margin in the Senate, and given that the White House surely had reason to be prepared for Breyer, now 83, to announce his resignation at any point over the last year. Former President Donald Trump and a Republican majority in the Senate moved briskly to fill the vacancy left by Ruth Bader Ginsburg’s death in September 2020, with Amy Coney Barrett confirmed just over five weeks after Ginsburg died.

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The criticism is a bit overstated. Yes, the Democrats in the Senate have the narrowest margin possible, and losing just one seat would give Republicans the majority. The last time a Senate with a Republican majority confirmed a Democratic nominee to the Supreme Court was in the 19th century. But almost every current Democratic senator would be replaced at least temporarily by a Democrat if his or her seat became vacant. The risk isn’t quite zero, but it’s very small.

And, yes, the White House could have done a lot of the prep work before Breyer’s announcement. It surely did. But things change, and the best selection in February 2021 might not be the best choice in 2020; indeed, Jackson wasn’t as strong a candidate before she was confirmed to her current post in June of last year.

Remember: These are political choices, and the politics of the moment may matter, even when selecting someone for a lifetime seat. What’s more, there’s a difference between vetting someone enough to be sure she’s a good choice and the kind of vetting needed to prepare for a confirmation battle. The latter requires the same kind of self-research that political candidates do to be confident they know what their opponents are learning in their opposition research. Even if a lot of it is done in advance, it’s still reasonable to take an extra week or two  to prepare for whatever is coming — including by leaving a nominee’s name hanging out in public for awhile to see what attacks it generates.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:

Jonathan Bernstein at jbernstein62@bloomberg.net

To contact the editor responsible for this story:

Jonathan Landman at jlandman4@bloomberg.net