WASHINGTON – President Joe Biden is reaching out for Republican support for his eventual Supreme Court nominee, inviting the GOP's top Judiciary Committee senator to the White House Tuesday along with the panel's Democratic chairman and phoning Senate Republican leader Mitch McConnell for a one-on-one discussion.
Biden and fellow Democrats are working for significant GOP backing for the still-to-be-named nominee to replace retiring Justice Stephen Breyer — a steep challenge in a Senate that has been sharply and bitterly divided over the past three confirmations.
At the White House, former longtime Sen. Biden called Judiciary Chairman Dick Durbin, D-Ill., and the panel's top Republican, Iowa Sen. Chuck Grassley, “two good friends” and noted they had worked on many Supreme Court nominations together in their decades on the committee.
Biden noted that the Constitution calls for Senate “advice and consent," on a nominee, and he said, ”I’m serious when I say I want the advice of the Senate as well as the consent."
As Biden mulls a replacement for Breyer — a Black woman, he has promised — Durbin has been proposing a ceasefire of sorts after the wrenching partisan fights over former President Donald Trump’s three nominees. The Democratic senator has been vigorously reaching out to GOP colleagues since Breyer announced last week that he will step down this summer.
The White House outreach is a similar attempt at détente by the president, who along with Durbin and Grassley is a veteran of a bygone era when Supreme Court justices were confirmed with overwhelming support from both parties. Biden was chairman of the panel in 1994 when Breyer was confirmed 87-9.
“It was old home week,” Durbin said as he returned from the White House.
Winning much GOP support for Biden's nominee will be a challenge, though, as advocates push him to nominate a strong liberal and some Senate Republicans have criticized the president even before he makes his decision.
McConnell, who also served with Biden for many years, has urged the president to pick a moderate. His office said he spoke with Biden Tuesday afternoon and “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.”
At a committee meeting Tuesday morning, Grassley condemned Democratic advocates who pressured Breyer to retire, and he said nominees should be judged “solely on their qualifications.” After the White House meeting, he said he told the president “that I want somebody that’s going to interpret law, not make law.”
Maine Sen. Susan Collins, a moderate Republican who might be the most likely GOP senator to vote for a Biden nominee, on Sunday called the president’s handling of the nomination so far “clumsy," saying he had politicized the process.
Other Republicans have openly stoked a debate over Biden’s promise to nominate a Black woman. Mississippi Sen. Roger Wicker said he views the process as “affirmative action.” Texas Sen. Ted Cruz said it’s "offensive" because Biden is saying white men and women have the “wrong skin pigment and wrong Y chromosome."
The court was made up entirely of white men for almost two centuries. Justice Clarence Thomas and the late Thurgood Marshall are the only two Black men who have served on the court. There has never been a Black woman.
Durbin has noted that Republican Presidents Ronald Reagan and Donald Trump both promised to pick women and were praised when they nominated Sandra Day O’Connor and Amy Coney Barrett, respectively. There have been only five female justices in U.S. history, while there have been 110 men.
“It is not uncommon for a president of the United States in filling a Supreme Court vacancy to announce in advance what type of person he wants,” Durbin said Monday.
Collins is a particularly important target for Democrats. She has voted for some of Biden’s lower court judges and against Barrett’s nomination in 2020. Durbin called her within hours of learning that Breyer would step down, and has made clear that Democrats won’t rush the confirmation, in line with her call for a deliberate process.
While criticizing Biden, she has also thanked Durbin for reaching out and saying he will provide whatever information she may need.
Collins said she wants “dignified hearings” and bipartisan support — but added that it depends on who the nominee is.
“The reason for us to try to get the nomination process back to the way it used to be when Supreme Court nominees were frequently confirmed overwhelmingly is the credibility of the court is at stake,” she said. “If the court is perceived by the American public as a political institution, that is harmful and undermines support for its decisions.”
Two other Republicans have signaled they could vote for a Biden nominee — if it is the right one. South Carolina Sens. Lindsey Graham and Tim Scott have both praised J. Michelle Childs, a federal judge who got her law degree from the University of South Carolina School of Law. The White House has said Childs is under consideration.
“She has wide support in our state,” Graham said Sunday on CBS, adding that the Supreme Court should look “like America.”
Other Republicans could be open to voting for a Biden nominee, as well. Alaska Sen. Lisa Murkowski, who is up for reelection this year, has supported some of his lower court nominees. And some GOP senators said this week that they have no problem with Biden’s approach. Missouri Sen. Roy Blunt said he would be “happy to vote for the first Black woman.”
Working to win bipartisan support will be former Alabama Sen. Doug Jones, a Democrat who often crossed party lines before he was defeated for reelection in 2020. Jones will serve as the lead official for the White House to shepherd the nomination, said two people familiar with the discussions who spoke to the AP on condition of anonymity. The former senator and U.S. attorney is another old friend of the president's, dating back to Biden's first presidential campaign in 1988.
Durbin acknowledged the challenges ahead, and the balance Biden will have to strike in picking the right person. He said that in reviewing early names that have been floated, he believes each is open to more moderate or conservative rulings.
“So that will be a plus and a minus,” Durbin said. “Some Republicans may point to it as a reason to vote for her. Some in the far left may find it as a reason to vote against her.”
Associated Press writers Alexandra Jaffe, Michael Balsamo, Kevin Freking and Farnoush Amiri contributed to this report.