A Supreme Court pick is often a marker in an American president’s tenure, and it can be one of the most impactful things that they do as president. After all, the US Supreme Court has grown in power in the past 50 years and is now the only body which can make country-wide decisions on major policy issues in US politics, such as LGBTQ+ rights, abortion, gun control, and now Covid-19.
Biden’s first – and possibly only –Supreme Court pick is Ketanji Brown Jackson. She is a Black woman, who has served on the Court of Appeals for the District of Columbia. She will join a 6-3 conservative bench, replacing Justice Breyer who was nominated in 1994 by President Clinton. Her nomination is significant, as she will be the first Black woman to serve on the court and her nomination will mean that there are four women on the bench. However, her nomination will not change the court’s political leaning, which was cemented by President Trump, who nominated three young staunch conservatives in four years.
The Supreme Court has long been a point of political contention in America and political campaigners try to make their impact on who is nominated to the Supreme Court. Some research suggests that in 2016, Trump received the support of Christian groups, despite them disliking his morals, because one of his first acts in office would be to nominate a Supreme Court Justice. If Trump was elected, those groups would then be able to influence him towards a nominee which would uphold their values on abortion and LGBTQ+ rights cases, something they achieved with the nomination of Justice Neil Gorsuch.
It is for this reason that liberals across America were pressuring Breyer to step down since Biden’s inauguration. They wanted another liberal justice to be appointed and they saw Biden nominating Breyer’s replacement whilst there was a Democratic majority in the Senate as their only chance.
He was facing pressure from political elites, members of the media and the general public, with reports of vans with “Breyer resign” written on them driving around Washington DC. Ruth Bader Ginsburg complained about being pressured to resign from the beginning of the Obama presidency. She also highlighted that Breyer did not face these similar calls, despite them being similar ages and nominated to the court only a year apart.
The fact that Trump rushed through the nomination of Amy Coney Barrett during a presidential election campaign angered Democrats. Especially after the actions of Mitch McConnell in 2016. The Republican leader in the Senate refused to hold hearings for Merrick Garland, Obama’s nominee to the Supreme Court, in February 2016 because he deemed it too close to a presidential election which was happening in November of that year.
Coney Barrett’s nomination happened just over a month before the 2020 election. This haggling and hoarding of the nine seats on the court shows just how precious one is and how important who Biden chooses is to his presidency and legacy.
Biden has not just made a significant Supreme Court pick though, his nominations to lower federal courts have also been hugely diverse and at a rapid pace. The US judiciary is in crisis, it faces an acute number of vacancies and a rising number of cases given that the pandemic delayed proceedings.
Furthermore, over the past two years, the criminal justice system has been under increased scrutiny because of charges of institutional racism as a result of highly publicised reports of police killing Black men. The US has the largest prison population in the world and as of 2018, Black men accounted for 38 percent of the male prison population.
Therefore, Biden has been charged by many with the responsibility of fixing the problem and making the criminal justice system more representative of the US population.
Whilst he isn’t introducing any crime legislation, he has made the most diverse nominations to the courts in US history. He nominated the first Muslim federal judge, the most African American women to the federal judiciary and has nominated public defenders and those with experience in Civil Rights organisations rather than prosecutors only. Whilst this will shake up the judiciary, Biden still has a long way to go to challenge the 200 appointments President Trump made.
So far, of his 83 nominees, only 46 have been confirmed by the Senate and there is very little action he can take given the enormous challenges he is facing in passing his legislation. Furthermore, it is likely to get worse for Biden in the upcoming midterms as the Republicans only have to gain one seat to be in the majority, and with Biden’s popularity waning and midterms often producing an upset for the governing party, his fortunes do not look good.
Ketanji Brown Jackson will likely be confirmed by the Senate and she will make history when appointed to the Court. However, her ability to influence decisions looks bleak at the moment given that the court has a 6-3 conservative majority. There are also risks that her nomination will hide the struggle Biden is facing on lower courts in getting his nominees confirmed. Her nomination is symbolic, but there is a risk that it will only be a symbol.
