Here’s who may replace Justice Breyer, and what Democrats can do if Republicans oppose

Justice Stephen Breyer's retirement announcement paves the way for President Joe Biden's promised nomination of a Black woman to the Supreme Court. White House correspondent Geoff Bennett begins the report, and congressional correspondent Lisa Desjardins joins Judy Woodruff with more on how the Senate may respond to his nominee options.

Read the Full Transcript

  • Judy Woodruff:

    The process of filling upcoming vacancy on the U.S. Supreme Court can now begin in earnest.

    Justice Stephen Breyer formally announced today that he is stepping down, setting the stage for a Senate confirmation battle.

    The "NewsHour"s Geoff Bennett begins our coverage.

  • Geoff Bennett:

    President Biden and Justice Stephen Breyer together at the White House today to announce Breyer's retirement from the Supreme Court.

  • President Joe Biden:

    I'm here today to express the nation's gratitude to Justice Stephen Breyer for his remarkable career of public service.

  • Geoff Bennett:

    Breyer served more than 27 years on the nation's highest court, a career he called challenging and meaningful in a letter informing the president of his intent to retire at the end of the court's term.

  • Stephen Breyer, U.S. Supreme Court Associate Justice:

    It's a kind of miracle when you sit there and see all of those people in front of you, people that are so different in what they think. And yet they have decided to help solve their major differences under law.

  • Geoff Bennett:

    The announcement gives President Biden an opportunity to deliver on a key campaign promise nominating an African American woman to the Supreme Court.

  • President Joe Biden:

    While I have been studying candidates' backgrounds and writings, I have made no decision, except one.

    The person I will nominate will be someone of extraordinary qualifications, character, experience, and integrity, and that person will be the first Black woman ever nominated to the United States Supreme Court.

    It's long overdue, in my view.

  • Geoff Bennett:

    The president said his process of selecting a nominee will be rigorous, and he will seek the advice of the Senate, getting input from lawmakers of both parties, as well as scholars, lawyers and Vice President Kamala Harris, herself an attorney.

    He said he expects to announce his selection before the end of February. The current front-runners include U.S. Circuit Court Judge Ketanji Brown Jackson, who was nominated by former President Obama, then elevated by President Biden to the U.S. Court of Appeals D.C. Early in her career, she worked as a law clerk under Breyer.

    California Supreme Court Justice Leondra Kruger, also a former U.S. Supreme Court clerk, she has argued a dozen cases in federal court.

    And U.S. federal Judge J. Michelle Childs of South Carolina, who has been nominated to the D.C. Circuit of Appeals. She's a favorite of South Carolina Congressman James Clyburn. the House majority whip who was instrumental in Biden's win.

    Breyer's retirement also marks a full circle moment for the president, who chaired the Senate Judiciary Committee during Breyer's 1994 confirmation.

  • President Joe Biden:

    I was proud and grateful to be there at the start of this distinguished career on the Supreme Court. And I'm very proud to be here today.

  • Geoff Bennett:

    The nomination will be one of the most consequential choices of Biden's presidency and could offer him a political lifeline ahead of the 2022 midterm elections, Breyer's retirement giving the president a chance to nominate his first Supreme Court justice, a history-making selection, while reinforcing the High Court's liberal minority.

    For the "PBS NewsHour," I'm Geoff Bennett in Washington.

  • Judy Woodruff:

    It is not known exactly when President Biden will select his Supreme Court nominee, but the Senate confirmation battle is already taking shape on Capitol Hill.

    Here to explain how it could all play out is congressional correspondent Lisa Desjardins.

    So, hello, Lisa. We know this is happening, as we know, at a time when there is a 50/50 divided Senate. What is the process — what does the process look like that we should expect to see?

  • Lisa Desjardins:

    Well, I'll tell you, a slow week on Capitol Hill sure got busy fast for many Capitol Hill staffers.

    I want to tell people that the 50/50 Senate will mean a slightly different process for President Biden, maybe a more difficult process for him, than was the process for President Trump. Let me take folks through this.

    That first step in the process, of course, is the Judiciary Committee. And in the 50/50 Senate, it is 11 Democrats and 11 Republicans. A tie vote in that committee for a nominee fails the nominee. Now, if there is a tie, however, Democrats can get around that by using a discharge process.

    That's something they have used repeatedly with judicial nominees. Then the nominee would go to the full Senate, where a Supreme Court nominee currently requires only a majority vote. There is not the 60-vote threshold involved any longer for Supreme Court nominees.

    Now, the question is how much will Republicans fight this nominee. And, of course, who the nominee will make — is will make a very big difference. This is one reason that the White House, we can report, from Geoff Bennett getting sources at the White House, telling us that the Biden administration wants this to be a judge, not someone who is outside of the judicial sphere.

    Let's look at those three judges that Jeff mentioned in his piece. And I can report what Democrats are telling me on the hill as they see the different advantages to each one.

    The first is Judge Ketanji Brown Jackson. Now, she's someone interesting enough that Biden personally interviewed last year before he elevated her to the Court of Appeals.

    Now, Justice Leondra Kruger of California, she is someone who's seen as more of a moderate, someone who perhaps could gain more Republican support.

    And then Michelle Childs of South Carolina, she is someone who already has some Republican support, South Carolina's senators, Lindsey Graham and Tim Scott, saying that they support her. And, of course, Judy, as we heard in Geoff' piece, so does Jim Clyburn, that real pivotal figure in the Biden administration, has a lot of influence.

    Here's what Representative Clyburn said last night on CNN.

  • Rep. James Clyburn (D-SC):

    I want us to make sure that it is a Black woman. I want to make sure that it's a woman that will get universal support.

    When I say universal, I mean bipartisan support. And I know that Michelle Childs will have the support of several Republicans, including the two Republican senators from South Carolina.

  • Lisa Desjardins:

    And how about this for timing, Judy?

    Next week, Judge Childs is to appear for her confirmation hearing for the Court of Appeals, so a very rare potential tryout, if you will, for this woman who is getting a lot of attention in this moment.

  • Judy Woodruff:

    So, Lisa, is it your understanding that both parties already have their strategy figured out for how they're going to approach this?

  • Lisa Desjardins:

    You know, again, it depends on the nominee.

    But, yes, let's talk about what we know at this moment. Republican Leader Mitch McConnell today told reporters that he will give the nominee a fair look. He has said he doesn't want someone who's from the radical left, but he said he's not going into this with his mind made up.

    Senator Schumer, for the Democrats' part, says he wants a fair and quick process. I'm told that he would like the entire process to last about a month from the time the nominee is announced. Again, who the nominee is will matter.

    Republicans do have one method of blocking a potential Supreme Court nominee. It's a bit weedy, but, essentially, they could just not show up for a committee vote. Democrats don't have a work-around for that. But, right now, both parties seem to want a smooth and easy path forward. No drama at this moment.

  • Judy Woodruff:

    Interesting.

    And just finally, Lisa, as we know, the Democrats have a number of things on their agenda right now. How does this Supreme Court nomination process, how is it seen that could affect what they're trying to get through, meanwhile?

  • Lisa Desjardins:

    The calendar is getting busy again, Judy. Let's look.

    First of all, if you look at these three weeks now ahead, Democrats will be working on potentially a China competitiveness bill, Electoral College reform. Then, on February 18, we have government funding set to run out.

    After that, Republicans and Democrats both go on recess in the Senate. And that is right when the president's goal is for having a nominee. Of course, right after that, March 1, State of the Union. That's when President Biden wants this nominee announced and the process to be under way.

    So it's going to be a busy few weeks.

  • Judy Woodruff:

    Certainly looks like it.

    Lisa Desjardins, thanks very much.

Listen to this Segment