Biden’s delay in nominating a Justice produces discord

The Hill reports that Senate Democrats are urging Joe Biden to “speed up his process for picking a nominee to the Supreme Court.” It has been about three weeks since Justice Breyer announced he will retire. It took only a month to confirm Amy Coney Barrett.

Confirming Barrett was a matter of great urgency because Republicans were well on their way to losing control of the Senate. Democrats aren’t up against an election deadline yet — the midterms are almost nine months away — but they hold the Senate by only one seat, and Sen. Luján is out of action for health reasons, reportedly for four to six weeks.

With a majority this tenuous, it’s understandable that Senate Dems want to get on with confirming a replacement for Breyer. According to the Hill, they are also driven by a desire “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.”

There’s another reason why Democrats should want Biden to give them a nominee very soon. The in-fighting taking place among backers of the three leading candidates for the nomination threatens to damage the reputation and/or standing of the eventual nominee.

Judge J. Michelle Childs has come under attack from organized labor for defending companies in labor and employment disputes (the horror!). Judge Leondra Kruger has been criticized, as somewhat moderate (the horror!), too “privileged,” and for losing badly in a religious freedom case she argued on behalf of the U.S. government before the Supreme Court (hey, it happens even to the best).

Judge Ketanji Brown Jackson is now opposed by Alabama civil rights icon and former U.S. district judge U.W. Clemon. He criticizes her for rejecting a class action settlement in a case against Lockheed Martin.

Clemon is a partner in a firm involved in that case, so he is not a disinterested critic. Still, if Brown Jackson is the nominee, Clemons’ attack won’t do her any good.

The problem isn’t so much that these attacks will derail the nominee, whichever judge that is. Once there’s a nominee the Democrats, their interest groups, and the media will rally around her. And if Sen. Luján gets back in action, the Democrats will have the votes to confirm any of the three. I wouldn’t be surprised if the nominee gets a few Republican votes, as well.

The problem is that there will more bitterness than necessary and less enthusiasm than there could have been. Those who have dialed up attacks and those who took the attacks seriously will be more upset than if the nominee had been selected right away.

And even when confirmed, the new Justice will probably take the bench with a little less glow than otherwise would have been the case. The “forward momentum” the Democrats say they expect from finally winning something might not be all it could have been.

It’s true that the White House needs thoroughly to vet its nominee. The price of bad mistake in vetting far exceeds the price of the squabbling going on now.

But Breyer’s retirement didn’t come up of the blue, and the administration has always known that Joe Biden would have the opportunity to fill at least one seat on the Supreme Court before his term ends. The delay in selecting a nominee smacks more of indecision in the face of lobbying and a desire to please than of a need for more vetting.

If there’s more delay, it will be yet another sign, albeit a minor one, that Team Biden isn’t functioning well.

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