President Joe Biden met Tuesday with Illinois Sen. Dick Durbin and Iowa Sen. Chuck Grassley, the chair and ranking member of the Senate Judiciary Committee, to consult with them about his potential replacement for retiring Supreme Court Justice Stephen Breyer.

What You Need To Know

  • President Joe Biden met Tuesday with Illinois Sen. Dick Durbin and Iowa Sen. Chuck Grassley, the chair and ranking member of the Senate Judiciary Committee, to consult with them about his pick to replace retiring Supreme Court Justice Stephen Breyer

  • Biden said Tuesday that it is his "hope" to have his decision on who he will nominate by the end of the month

  • Biden has promised to nominate a Black woman to serve on the Supreme Court; Possible choices include D.C. Circuit Court Judge Ketanji Brown Jackson, U.S. District Court Judge Michelle Childs and California Supreme Court Justice Leondra Kruger

  • Biden’s comments sparked criticism among some Republicans, despite the fact that the president has not yet put forward a nominee and President Ronald Reagan previously promised to nominate the first woman to the Supreme Court

  • It’s possible that some Republicans may actually back Biden’s pick: Three Republicans voted to support Judge Jackson during her confirmation hearing last year, and Sen. Lindsey Graham heaped praise on fellow South Carolinian Judge Childs in an appearance on CBS’ “Face the Nation” Sunday

"Selecting a justice is one of the president's most serious responsibilities," Biden said of the duty to replace Breyer, as he sat in the Oval Office with Durbin, Grassley and Vice President Kamala Harris.

Biden, who has served as both the chair and ranking member of the Judiciary Committee, hosted the two lawmakers “to consult with them and hear their advice about this vacancy,” which Breyer announced last week will come at the end of the court’s term this summer.

The president praised both Grassley and Durbin, saying he has worked with both lawmakers over the years to confirm several Supreme Court nominees.

"The Constitution says 'advise and consent, advice and consent,' and I’m serious when I say I want the advice of the Senate as well as the consent," Biden said.

"There's always a renewed national debate every time any president nominates a justice, because the Constitution is always evolving slightly in terms of additional rights, or curtailing rights, etc., and it's always an issue," the president continued. 

Biden said that while there are "several schools of thought in terms of judicial philosophy," he is looking for a "candidate with character, with the qualities of a judge in terms of being courteous to the folks before them and treating people with respect, as well as a judicial philosophy that is more one that suggests that there are unenumerated rights in the Constitution, all the amendments means something including the Ninth Amendment."

The Ninth Amendment reads: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Biden said that it is his "hope" to have his decision on who he will nominate by the end of the month. Biden also spoke by phone to Senate Minority Leader Mitch McConnell, R-Ky., on Tuesday about the vacancy, according to a spokesperson for the Kentucky Republican.

McConnell "emphasized the importance of a nominee who believes in judicial independence and will resist all efforts by politicians to bully the court or to change the structure of the judicial system," the spokesperson said. 

The president has pledged to make good on a campaign promise by nominating a Black woman to serve on the high court, a first in U.S. history.

“The person I will nominate will be someone with extraordinary qualifications, character, experience and integrity and that person will be the first black woman ever nominated to the United States Supreme Court,” Biden said at an event last week. “It's long overdue in my opinion, I made that commitment during the campaign for president, and I will keep that commitment.”

Some of the judges Biden is expected to consider include Ketanji Brown Jackson, a circuit judge on the U.S. Court of Appeals for the District of Columbia Circuit, Michelle Childs, a U.S. District Court judge for the District of South Carolina, and Leondra Kruger, an Associate Justice of the Supreme Court of California.

Biden’s comments sparked criticism among some Republicans, despite the fact that the president has not yet put forward a nominee.

“The fact that he is willing to make a promise at the outset that it must be a Black woman I've got to say that's offensive,” Texas Sen. Ted Cruz said on his podcast. “Black women are what, 6% of the U.S. population? He's saying to 94% of Americans 'I don't give a damn about you, you are ineligible.”

It's actually an insult to Black women, if he came and said 'I'm going to put the best jurist on the court', and he looked at a number of people and he ended up nominating a Black woman he could credibly say 'OK, I'm nominating the person who is most qualified.' He's not even pretending to say that," Cruz added. "He's saying if you're a white guy, tough luck. If you're a white woman, tough luck, you don't qualify.”

“I think the important thing is that this is someone who will uphold the Constitution faithfully, regardless of their ethnic background or gender or anything else,” Missouri Sen. Josh Hawley told CNN last week. “I think it sends the wrong signal to say that, 'Well if a person is of a certain ethnic background, that we don't care what their record is, we don't care what their substantive beliefs are.' That would be extraordinary."

Mississippi Sen. Roger Wicker said that the nominee would be the “beneficiary” of affirmative action, calling it “irony” that the high court agreed to hear a case which could have a major impact on race-based consideration in college admissions.

“The irony is that the Supreme Court is at the very same time hearing cases about this sort of affirmative racial discrimination while adding someone who is the beneficiary of this sort of quota,” Wicker said in an interview.

White House deputy press secretary Andrew Bates responded to Wicker’s comments by saying that Biden’s pledge to select a Black woman “is in line with the best traditions of both parties and our nation.”  

Bates went on to reference former President Ronald Reagan’s promise to nominate the first woman to the Supreme Court — selecting Sandra Day O’Connor in 1981 — and referenced Wicker’s own comments when Biden’s predecessor, former President Donald Trump, pledged to nominate a woman to the Supreme Court last year.

“When the previous president followed through on his own promise to place a woman on the Supreme Court, Senator Wicker said, 'I have five granddaughters, the oldest one is 10. I think Justice Amy Coney Barrett will prove to be an inspiration to these five granddaughters and to my grown daughters,” Bates said, adding: “We hope Senator Wicker will give President Biden's nominee the same consideration he gave to then-Judge Barrett.”

Republican Sen. Susan Collins, R-Maine, knocked Biden's handling of replacing Breyer as "clumsy at best."

"I would welcome the appointment of a Black female to the court," the Maine Republican said on ABC's "This Week" on Sunday. "I believe that diversity benefits the Supreme Court, but the way that the president has handled this nomination has been clumsy at best. It adds to the further perception that the court is a political institution like Congress when it is not supposed to be."

Other Republicans have not commented on aspects of race or gender, including Minority Leader Mitch McConnell and Louisiana Sen. John Kennedy, who said they would judge the pick on their qualifications.

In a 50-50 Senate, it's highly unlikely that Republicans would be able to block a Biden pick without a Democratic defection, and both moderate Sens. Joe Manchin, D-W.Va., and Kyrsten Sinema, D-Ariz., have voted to support every one of President Biden's judicial picks.

Manchin told reporters Monday that he is "anxious" to confirm a successor to Breyer.

"I’m just in favor of basically filling the court and making sure we don’t have a vacancy there for any time at all," Manchin said Monday. "So yes, absolutely, let’s move forward."

Manchin said he thought Biden was considering "excellent names" and said that "the time has come" to pick a Black woman for the high court.

"I think it's great to have this many extremely qualified people that can serve and I think serve justice," he said. "It's basically just a balance that needs to be done to represent who we are as a nation."

Manchin said that the speed of the process will depend on whether or not the Senate has previously considered the justice for a lower judgeship – like Jackson, who was confirmed in June of last year.

If you have somebody that’s already been vetted, then it goes pretty quick,” the West Virginia Democrat said. "So if not, then you go down a deep dive. This is the highest court in the land, so it takes time to make sure you get the right person. But there’s a lot of qualified people who have been mentioned so far."

Some Democrats are hoping to have the length of the confirmation process be similar to that for Justice Barrett, who was confirmed 30 days after her nomination in 2020.

Durbin told ABC's "This Week" on Sunday that once Biden makes his pick, "we're off and running."

"We'll be ready from a staff viewpoint and logistic viewpoint, but the decision really starts with the President and as it should," Durbin said. "When he chooses a nominee and sends it to the Senate, then we're off and running."

"And that nominee and the background of the nominee, in terms of whether they've been before the committee, how recently they were there, and how much information we can bring together quickly, we'll decide the timeline," he added.

Senate Majority Leader Chuck Schumer, D-N.Y., said last week he expected "a fair process that moves quickly," but Sen. Collins said that "there is no need for any rush."

"I felt that the timetable for the last nominee was too compressed," the Maine Republican told reporters last week, referring to Justice Barrett's confirmation. "This time, there is no need for any rush. We can take our time, have hearings, go through the process — which is a very important one. It is a lifetime appointment, after all."

"The reason I voted against Amy Coney Barrett was that her nomination and the vacancy occurred too close to the presidential election," Collins said Sunday on ABC's "This Week."

It’s possible that some Republicans may actually back Biden’s pick. 

Judge Jackson received the support of three Republican Senators during her confirmation hearing last year: Sens. Lindsey Graham, R-S.C., Lisa Murkowski, R-Alaska, and Collins.

And on Sunday, Sen. Graham lavished praise on his fellow South Carolinian Judge Childs during an appearance on CBS’ “Face the Nation.”

"I can't think of a better person for President Biden to consider for the Supreme Court than Michelle Childs,” Graham said. “She has wide support in our state, she's considered to be a fair-minded, highly gifted jurist. She's one of the most decent people I've ever met.”

“She's highly qualified,” he added. “She’s a good character, and we'll see how she does if she's nominated. But I cannot say anything bad about Michelle Childs. She is an awesome person.”

Childs also has the support of House Majority Whip Jim Clyburn of South Carolina, who helped deliver Biden a crucial victory in the state’s primary, which helped fuel his presidential bid through the rough-and-tumble 2020 Democratic presidential primary.

On the same program Sunday, Clyburn said that putting a Black woman on the court “says to every little child up there growing up under moderate circumstances, needing the entire community help raise it, getting scholarships to go up to school because she couldn't afford to go otherwise, going to public schools because you didn't get an offer from one of the big private schools.”

“It says to them, you've got just as much of a chance to benefit from the greatness of this country as everybody else,” he continued. “As you probably know, I have made it the motto of my service; making America's greatness accessible and affordable for all Americans. And that's what this will do. That's the kind of conversation I had with candidate Biden way back when he was running for president.”

Graham pushed back on some of his fellow Republicans’ assertions about imposing race and gender on his nomination, citing Reagan’s nomination of O’Connor.

“President Reagan said running for office that he wanted to put the first female on the court,” Graham said. “Whether you like it or not, Joe Biden said, 'I'm going to pick an African-American woman to serve on the Supreme Court.”

"I believe there are plenty of qualified African-American women, conservative and liberal, that could go on to the court,” he continued. “So I don't see Michelle Childs as an act of affirmative action. I do see putting a Black woman on the court, making the court more like America. So let's make the court more like America, but qualifications have to be the biggest consideration.

“And as to Michelle Childs, I think she is qualified by every measure,” he added.

Psaki said Monday that the White House was aware of the comments from both Clyburn and Graham, but would not speculate about if the president was swayed either way.

“[Biden] takes his role very seriously, and his role is to pick the most eminently qualified, credentialed Black woman to serve as the Supreme Court, as a Supreme Court justice, a lifetime appointment,” she said. “We always welcome agreement on anything in this town, but the president’s focus is not on gaming out the process. It’s on picking the right candidate.”