Justice Stephen Breyer’s recent decision to retire was one of the few expected political developments in an era of tremendous uncertainty. After a long career of compromise that earned him the respect of both parties, Breyer’s retirement presents President Biden with a chance to re-center his struggling administration and make a lasting impact on the political climate of the nation.
Judging by the strife that has accompanied recent nominees, Biden must approach his choice of a replacement with extreme caution. He must be careful to make a reasonable decision that doesn’t lead his presidency further astray. In order to accomplish this, Biden should look to nominate a nontraditional candidate who can voice a wider set of opinions than current justices: a centrist’s opinion.
During the 2020 Democratic primaries, Biden promised to nominate a Black woman to the Supreme Court, a promise that revived his stagnant campaign. While his choice for the high court will be a history-making pick because of their demographic, if Biden is truly committed to diversifying the bench, he should also look for diversity elsewhere.
The court is currently woefully homogeneous, with almost all of the justices coming from urban backgrounds, and all justices, beside Justice Amy Coney Barrett, having attended Harvard or Yale. While it’s important to have highly qualified individuals on the bench, it’s also paramount to have voices that represent the breadth of American experiences.
Though the multitude of traditional achievements amongst recent justices is evident, the similarity of their backgrounds is clear in both the cases they add to the court’s docket, which overwhelmingly originate from urban areas, and the rulings they ultimately make. In order to widen the breadth of experience in the highest court in the land and push back against the status quo, Biden should stray from convention and look for a judge from a nontraditional background.
In addition to selecting a nominee who represents a broader set of Americans, it’s important that Biden chooses a judge that mirrors the ideologically centrist views of the average citizen. While Biden himself is a moderate, his governing style over the first year of his administration has reflected the influence of left-wing activists in his party, whom Biden often struggles to push back against.
With only three left leaning justices on the bench, the country needs another justice capable of compromising with the more right leaning wing of the court, in the mold of Justice Elena Kagan or Justice Breyer himself. If, however, Biden selects an activist Judge in the vein of Justice Sonya Sotomayor, who often goes out of her way to comment on national politics, he risks sabotaging any chance of compromise and ceding the court’s rulings to its right wing.
Justice Breyer made his mark on the court as a moderate always open to working with anyone on rulings. Of the three current left leaning justices, he has cast the lowest percentage of votes aligning with the left wing of his party, deviating on issues he believed would stoke ideological divides. In particular, he voted against the law to uphold the full Medicaid expansion, in the process negotiating with Chief Justice John Roberts to maintain the individual mandate, a ruling that ultimately kept millions of citizens with pre-existing conditions covered by the law. He also sided with conservative justices on issues of religious freedom, allowing the public display of the Ten Commandments in two distinct cases in an effort to avoid “religiously based divisiveness.” More recently, he has publicly opposed court-packing and has even gone so far as to pen multiple books defending the Supreme Court as a neutral institution.
His willingness to compromise lent credence to the rulings that he ultimately decided to take strong stands on, allowing him to be the voice of reason in decisions protecting the right to abortion and to respectfully dissent to the expansion of the death penalty. Finding a new justice who follows this style is critical to maintaining a sense of balance on a court where the right wing outnumbers the left two to one.
Ultimately, Biden’s nominee for the Supreme Court will have profound implications on the law for decades to come, as well as immediate impacts on national unity. In a time when Americans face economic threats from the tailwinds of COVID-19 and international threats from China and Russia, the country certainly does not need the outer partisan battling that has accompanied recent nominations. By choosing a judge with a background that matches a broader set of American experiences, Biden has a rare opportunity to hit the reset button and finally deliver the unity he promised. Let’s hope he makes the right decision.
Nikhil Sharma is an Opinion Columnist and can be reached at nsnikhil@umich.edu.