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Senate confirmation battle looms for Justice Breyer's replacement


The Supreme Court is losing a reliably liberal justice. Stephen Breyer officially announced his retirement today. This comes after nearly three decades on the bench. And now the speculation begins about who will replace him.


PRESIDENT JOE BIDEN: It is my intention to announce my decision before the end of February. I have made no choice at this point. Once I select a nominee, I'll ask the Senate to move promptly on my choice.

KHALID: That's President Biden at the White House earlier today. Whoever that nominee is, they'll will first need to face the Senate Judiciary Committee. Senator Sheldon Whitehouse, a Democrat from Rhode Island, sits on that committee and joins us now. Glad to have you with us, senator.


KHALID: So the confirmation hearings for the last two nominees - Amy Coney Barrett and Brett Kavanaugh, both appointed under former President Trump - were incredibly, you know, bruising, contentious and partisan. I'm wondering if you expect a similar battle to unfold on the Judiciary Committee this time around.

WHITEHOUSE: We'll see. You know, there's an important difference. Both of those nominees were chosen by a private, outside, right-wing organization funded by huge special interests anonymously. So the whole thing looked bad from the very beginning, and then an awful lot of rules and norms were broken in the process. So the president has asked us to move promptly, but I'm sure Chairman Durbin also wants to move fairly. And I can assure you there won't be any outside group funded by dark money picking Joe Biden's nominee.

KHALID: Senate Majority Leader Chuck Schumer has said that, you know, once the nominee is announced, he'll follow a relatively similar timeline, a very fast confirmation process that his predecessor, Republican Mitch McConnell, used for Amy Coney Barrett's nomination, which went through in just about a month. From your vantage point, does that time frame give lawmakers enough time to seriously consider a person who is up for a lifetime appointment to the highest court?

WHITEHOUSE: It very well may. I expect it likely will. There's a very good chance that the individual who the president ultimately selects will be somebody who's already been vetted for a judicial appointment, a federal judicial appointment, so they won't be new to the committee. They won't be new to the process. And that gives, I think, everybody a leg up in terms of moving forward.

KHALID: But, senator, I do think back to 2020, when I know that Democrats on the committee were appalled that Republicans were fast-tracking this process. So explain this to me. I mean, why would a similar timeline now be acceptable?

WHITEHOUSE: Well, that's the new normal that the Republicans created, and I don't think it's appropriate to have two separate rules for Democratic presidents and Republican presidents making nominations. I think a lot of what was really upsetting in the last nominations was the reversal of position related to whether you should have a nomination in the runup to a federal election. And as you'll recall, they kept the seat open because it was too near to an election, and then they pushed through Amy Coney Barrett even closer to an election. So there was enormous amounts of hypocrisy around those nominations and enormous amounts of procedural damage to the Senate, and I think this process will not be characterized either by hypocrisy or by any new procedural damage to the Senate.

KHALID: But, senator, it does sound like part of what you're saying, though, is that the rules have just fundamentally changed and...

WHITEHOUSE: The rules were fundamentally changed, indeed.

KHALID: So once the nominee is out of the committee, the whole Senate will vote on this process, and the Senate is split 50-50 right now, with Vice President Kamala Harris being the tiebreaker. Are you confident that a Biden nominee would have the support of every Democrat in the chamber?

WHITEHOUSE: It's impossible to say that without knowing the nominee, but what I am confident of is that the Biden administration is laser-focused on making sure that all 50 Democratic votes are buttoned down and that, in addition, I think they would hope that a qualified nominee might also get a number of Republican votes as well.

KHALID: So I want to ask you about that because - well, first, let me ask you about getting all 50 votes on the Democratic side because I'm thinking of two Democrats in particular - Kyrsten Sinema of Arizona, Joe Manchin of West Virginia - who have held up other key priority of the president's agenda, whether that's Build Back Better or voting rights. So why would this be different?

WHITEHOUSE: Well, because a judge is different than a major piece of legislation and is also different than a change in the Senate rules. And while those are very important areas in which the Democrats in the Senate were thwarted by their own members, there have been lots of other things in which we have not been thwarted by our own members. And, actually, one of them has been very strong...

KHALID: Judicial...

WHITEHOUSE: ...Support for the president's judicial nominees.

KHALID: You mentioned earlier about getting Republican support. Do you think it is important to try to gain some Republican support for the nominee? Or is it more important for the president to choose a candidate who will really appeal to Democrats, who will uphold liberal policy?

WHITEHOUSE: I think it's important to make sure that the nominee will get all 50 Democratic votes because if you can't do that, you can't assure yourself of proceeding. And I think in the Senate, we've had enough of vain effort. But once you have a candidate who we can get behind the president and support, then I think to reach out and show the qualifications of this candidate and hope that Republicans will join us based on her qualifications and the way she's conducted herself in the hearing and all of that - it's much to be hoped for.

KHALID: That's Senator Sheldon Whitehouse, a Democrat from Rhode Island and a member of the Senate Judiciary Committee. Thank you so much for joining us. I appreciate it.

WHITEHOUSE: My pleasure.


All right. Let's stay with this story. Here with more on how the Senate will proceed is NPR congressional correspondent Kelsey Snell. Hey there.


KELLY: So I think you were listening just there to Senator Whitehouse. Start there. Anything leap out at you?

SNELL: I thought it was really interesting that he landed on the conversation about how, you know, there's been a fundamental change to the rules in the Senate. You know, this is another example of how political this process has really become. You know, despite efforts from justices, sitting justices to keep the Supreme Court insulated from politics, it is a political process. It is a political question as senators begin to consider who should be the next justice.

KELLY: All right. Well, let's cut straight to the timing. We heard a moment ago President Biden saying he plans to announce a nominee by the end of next month, end of February. Senator Schumer says he wants to confirm a justice in about 30 days. Realistic?

SNELL: Well, it's possible, though it would be quite fast. You know, it is worth remembering that Biden is set to give his first State of the Union on March 1. And while that's not a deadline, it could really provide a nice political goal for Democrats who want to make a big public splash out of approving a nominee, about moving forward. And, you know, I thought it was interesting that Senator Whitehouse said that they were - that they had had enough of vain effort in the Senate. Well, this would be an opportunity for Democrats to say, we got something done. This is not a vain effort. We delivered a Supreme Court justice.

KELLY: So what's this process going to look like?

SNELL: Well, starting with - Democrats on the Judiciary Committee are going to get things rolling today with virtual meetings, kind of talking through how they want things to go. And once a nominee is announced, there will be a questionnaire and background checks on that person and then meetings with leaders and committee members, also any senators who are not on the committee who might want to meet with the nominee. And as we saw with Amy Coney Barrett, this process could be changed or truncated because of the coronavirus, depending upon the - you know, where numbers are at the moment, then, you know, members are meeting with a nominee. Things could change. It also could be different depending upon who the nominee is. Some potential nominees had hearings before the committee less than a year ago, which means that senators have some familiarity with their background.

KELLY: And may I just inject a really obvious point? The Senate is split 50-50. We have watched over and over as Democrats have been unable to come together to pass even big priorities with that margin. Is that going to be a problem?

SNELL: Well, as long as Democrats agree that the nominee is qualified, this should be fairly smooth because oftentimes, members will go back to the question of qualification and judicial, you know, thought instead, necessarily, their political leaning in order to justify a vote. And there is no filibuster for a judicial nominee. But, you know, Republicans could slow things down by a day or two if there's a tie in the Judiciary Committee.

KELLY: OK, a little preview there of some of the nitty-gritty we may be headed toward. Meanwhile, President Biden and how he's going to pick a nominee - he mentioned he wants to seek the advice of the Senate. Do we know what he means?

SNELL: Well, it seems to be another nod to the bipartisanship we've been hearing him talking about, you know, on just about everything. Here is exactly how Biden put it.


BIDEN: The Constitution says seek the advice and consent but the advice, as well, of the Senate. I'm going to invite senators from both parties to offer their ideas and points of view.

SNELL: You know, he went on to say that he'd also be talking to leading scholars and lawyers and Vice President Kamala Harris. And senators are already offering opinions. At least one top Democrat, Patty Murray of Washington State, put out a statement immediately advocating for D.C. Circuit Court Judge Ketanji Brown Jackson to be the nominee. You know, the mention from Biden of both parties is really no mistake. Democrats want to pressure Republicans to back the nominee no matter what.

KELLY: Well, and that's the million-dollar question. Are Republicans likely to back the nominee, whoever it is?

SNELL: Yeah, you know, that's a big maybe. In the case of - you know, it's a political question here, yes. But there is not a situation where the balance of the court is a question. And it's possible the nominee could make a compelling case for bipartisan support. But, you know, both parties view this confirmation as an enormous political opportunity ahead of a critical midterm election that could determine control of both the House and the Senate.

KELLY: NPR congressional correspondent Kelsey Snell. Thank you, Kelsey.

SNELL: Thanks for having me. Transcript provided by NPR, Copyright NPR.

Asma Khalid is a White House correspondent for NPR. She also co-hosts The NPR Politics Podcast.
Kelsey Snell is a Congressional correspondent for NPR. She has covered Congress since 2010 for outlets including The Washington Post, Politico and National Journal. She has covered elections and Congress with a reporting specialty in budget, tax and economic policy. She has a graduate degree in journalism from the Medill School of Journalism at Northwestern University in Evanston, Ill. and an undergraduate degree in political science from DePaul University in Chicago.
Christopher Intagliata is an editor at All Things Considered, where he writes news and edits interviews with politicians, musicians, restaurant owners, scientists and many of the other voices heard on the air.