5 Things podcast: How do Supreme Court nominations happen?
On today's episode of the 5 Things podcast:
President Joe Biden announced his nominee to replace retiring justice Stephen Breyer on Friday. Biden nominated Ketanji Brown Jackson. If confirmed Jackson will become the first Black woman on the Supreme Court. Now the confirmation process begins with Democrats hoping to wrap up the hearing process before the Senate recess in mid April. The 5 Things team got to thinking; How does one become a Supreme Court judge? And what do the judges have in common? We sat down with Supreme Court correspondent John Fritze to get answers to some of our questions. His answers may surprise you.
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Hit play on the player above to hear the podcast and follow along with the transcript below. This transcript was automatically generated, and then edited for clarity in its current form. There may be some differences between the audio and the text.
James Brown: Hello, and welcome to 5 Things. I'm James Brown. It's Sunday, February 27th, 2022. On Sundays, we do things a bit differently, focusing on one topic or so instead of five. In this week, we're headed to the Supreme Court. On Friday, President Joe Biden made history nominating Judge Ketanji Brown Jackson to the Supreme Court. If confirmed, Jackson would be the first black woman on the highest court in the land.
Joe Biden: For too long, our government, our courts haven't looked like America. And I believe it's time that we have a court reflects the full talents and greatness of our nation with a nominee of extraordinary qualifications.
James Brown: During her remarks, Judge Jackson says she shares a birthday with the late Judge Constance Motley. Back in 1961, Motley became the first black woman to argue a case before the Supreme Court and a few years later, the first black woman to serve as a federal judge. If confirmed, Jackson said she hopes to be an inspiration like Motley was for her.
Ketanji Brown J...: And if I'm fortunate enough to be confirmed as the next Associates Justice of the Supreme Court of the United States, I can only hope that my life and career, my love of this country and the constitution and my commitment to upholding the rule of law and the sacred principles upon which this great nation was founded will inspire future generations of Americans.
James Brown: All this got the team at 5 Things thinking, how does one become a Supreme Court judge? And what do the judges have in common? So we asked Paste BN Supreme Court Correspondent, John Fritze, and his answers surprised me. John Fritze, welcome to 5 Things.
John Fritze: Thank you.
James Brown: I just want to start big and broad. For court watchers like yourself, people who report on this thing, how big are these moments where a new justice... Is it the equivalent of a Super Bowl or is it the Olympics for you? What is it like?
John Fritze: Yes, I think that's right. I think there's only nine of them. So these moments don't come along all that often. I've been on this beat for about a year. I can tell you that since day one, I have been thinking about this day. So for roughly a year, we've been planning for this, preparing for it. Of course it started with Justice Breyer's announcement, which we thought might happen earlier. We thought it might happen last summer at the end of the term, but we've been preparing and pre-writing stories and doing a ton of work to get ready for this for a year. So yeah, it is. For us, it is kind of like the Super Bowl.
James Brown: Help me understand, is there a place or are there common traits that potential Supreme Court justices have?
John Fritze: There's really no amazingly. I think people are amazed to learn that there's really no rules at all on this. The constitution is entirely silent. The president doesn't even have to nominate a lawyer. There's really no... It's no holds bars here on who the president could pick. Now, in practice, virtually all of a president's appointees, nominees to the Supreme Court come from the federal appeals courts. So in this case, Judge Jackson of course sits on the DC appeals court, the DC Circuit, and that is often considered the second most important court in the land behind only the Supreme Court because it sits in DC. It hears a lot of political cases, a lot of government cases, a lot of high profile constitutional cases.
And so many of the current justices have come from the DC Circuit, not all, but every single justice on the Supreme Court today sat before on an appeals court except for one and that's Justice Kagan. Justice Kagan is sort of a unique figure. She was the solicitor general for the United States, which is sometimes referred to as the 10th justice because it is the lawyer that argues before the court on a regular basis on high profile cases. So she's kind of an exception to the rule, but most of these justices in modern times like Judge Jackson come from the federal appeals courts.
James Brown: So the DC Circuit is a proving ground for a potential justice?
John Fritze: Very much so. I think they give presidents some sense. They also give the opposition some sense. They give both sides some sense of where the person is coming from, right? When you're an appeals court judge, you are more likely to be hearing constitutional questions, more likely to be hearing the kind of cases that make it up to the Supreme Court. And so it's something that you just don't get as maybe a trial court judge where you might be handling a lot more, I don't want to say pedestrian. There are big, important cases, but they tend to be a little more technical, a little less constitutional. You tend to have a docket that includes all sorts of things whereas as you move up the ranks, you tend to be dealing with bigger and bigger questions like the kind that we get on the Supreme Court. So those judges have a track record, a history of opinions that presidents and the opposition in this case, Republicans will look at to try to decide what they think about this person.
James Brown: So the jousting and the decision makings are based on confirmation hearings, at least in part. What are they like?
John Fritze: Right. So it's super high profile. They in the past have tended to get some broadcast airtime. Certainly when you have a controversial, a big controversial nominees, think Brett Kavanaugh, for instance, when he faced allegations of sexual abuse, sexual assault, those hearings were widely shared and broadcast all over the nation. I think it's not clear to me how much Judge Jackson, how much is that going to be? We'll have more of a sense of that the next few days I think how high profile that'll be, but without question, the hearings are high profile and Republicans are going to be looking for things to not like about her. And the things that I've heard Republicans talking about today, some Republicans, is they've sort of called her a radical. They say that she's supported by the sort of dark money groups on the left.
It's a tough one. Jackson has been confirmed by this Senate three times and she's received Republican support in those confirmations. Not a lot. Not a lot. I think the most recent one last year, she got through Republicans to support her, but that's kind of standard for these, right? And this is a different job. It's a much higher profile job. But I think for a lot of us watching this process, she was the most obvious choice because she has been vetted previously by the Senate. There was no major issue that came up with her. And so unless something unforeseen comes up, I think she is the safest bet for getting through the process.
James Brown: Is that likely why she was chosen?
John Fritze: It's hard to get inside the president's head, but I have a hard time believing it wasn't one of the factors. You had folks like Senate Judiciary Chairman, Dick Durbin. He was very careful to not choose a candidate. Rudy wanted to give the president room to pick whoever the president wanted, but he repeatedly said things like, "Look, it should be a judge. If it was somebody who recently got through the committee, that would sure make things easier. We already have the paperwork lined up. We've already recently vetted her." And there were other Democrats sounding that same note, right? So I think, I don't know why she was chosen. The president had sort of narrow it down to three. They were all very qualified women, but I would say Jackson is the one who has most recently gone through this process. And so I have to imagine that was at least one thing that was in the president's mind.
James Brown: And of course the president lightly said that he wanted to choose a black woman. I'm wondering how unique that is in court history that president would decide that I am going to pick X group for this role.
John Fritze: Well, I mean, certainly historic. Judge Jackson if confirmed would be the first black woman to serve on the Supreme Court. It's obviously a big deal, but in terms of has it ever been done before? Well, that was kind of some of the debate that kicked up once we got closer and closer to this with Republicans saying, well, should you be focusing on a race or a gender? Should you be doing that? The reality is, first of all, that past presidents have done that. Certainly President Ronald Reagan said that he wanted to pick a woman when he nominated Justice O'Connor. President Trump, same thing with Barrett. So there is some precedent for that.
The other thing is you talk to experts who follow this stuff closely as I do and they'll point out that, hey, race is always a factor, right? The fact that in the 233 year history of the Supreme Court, I think it's all but seven of the justices have been white men. It's hard to make an argument that race was not a factor there. It's just that race wasn't talked about. And race is being talked about now. And it comes at a time when there's a lot of discussion about race in this country, but I think the White House probably has the right to crow here a little bit and to tout this as a historic nominee.
James Brown: I would assume it's going to be pretty difficult to get a nominee through at such a polarising political moment. What do you think?
John Fritze: Yeah. I mean, it's worth noting that it's a very, very thin margin that Democrats have in the Senate. Now, of course, the rules have changed on this, right? It used to be you had to have 60 senators to overcome a filibuster and we don't need that anymore, right? The Democrats can do it with a simple majority. What Republicans can do is really slow it down and we'll see will they try to do that. Democrats are talking about trying to move this nominee by early April. That's pretty fast. Usually the process is about a two month process from the nominee being actually nominated to the confirmation vote. Justice Barrett, that was a much faster process, right? Republicans were trying to race against the clock for the election and get her seated before the 2020 presidential election. That one took about 37 days. So that's almost in half, right? What Democrats are talking about is somewhere in between like sort of the normal span and the Barrett span closer to the Barrett span. So they want to move pretty quick. They want to try to get this done by early April.
I think it remains to be seen if it'll be easier or not. It kind of depends on if there is controversy that comes out about Judge Jackson, how big of an issue Republicans make about some of her prior opinions, whether that captures resiliency. But I'll tell you this, at least in the days leading up to this nomination, Republican leaders. So not all Republicans, but Republican leaders were sending a signal that they would do due diligence, they would properly vet this nominee, but they weren't looking for a spectacle. So we'll see if they hold to that.
James Brown: Any idea why the Democrats want to move so quickly? April is right around the corner.
John Fritze: It's an excellent question and it's a question I have asked a lot of folks on Capitol Hill because the reality is that Breyer is not stepping down until June, right? He will be there until June. So you could get Judge Jackson confirmed say by early to middle April and then she's kind of cooling her heels until Breyer actually steps down. I think one of the factors for Democratic leaders is they see how thin the margin is, right? It's a 50-50 Senate and they may need the vice president to come in and break the tie. As Senator Durbin often says, they're one heartbeat away from losing the majority. In other words, any Senator could get sick and that's happened before, right? There's plenty of recent history where legislation has been jeopardized by a senator having to step out either because they got sick or for whatever reason. And so I think that may be part of the calculation.
The other thing is the political reality I think is that the longer you sort of leave a candidate for any job sort of twisting in the wind, the more possibility there is for something to come up. I think Democrats would like to have Judge Jackson sort of done and dusted so that that doesn't happen.
James Brown: Who's next on tap in the DC Circuit for the next round, whether it's for President Biden or whoever's president next?
John Fritze: Well, that's an excellent question. For the appeals court, one of the top candidates who President Biden was considering for the Supreme Court was a judge named Michelle Childs from South Carolina. Now, Biden had nominated her to the DC Circuit and that of course was put on hold while the president considered her for the Supreme Court. I assume that we will see that nomination sped back up.
One of the things that's interesting about that is that Judge Childs took some heat from progressives and particularly from sort of the Bernie Sanders wing of the party who were not happy with some of her decisions, some of her work as an attorney. So it's sort of the peril. There's a great benefit to being considered for the Supreme Court, but there can be peril too, right? It can put a little bit of a target on your back. And so I think it'll be interesting to see if that has any effect on Judge Childs nomination to the circuit court. I don't think it will, but I do think it makes her confirmation hearing, which presumably will follow, will come pretty soon, a little more interesting to watch.
James Brown: Well, thank you very much.
John Fritze: All right, thanks for having me.
James Brown: If you like the show, write us a review on Apple Podcasts or wherever you're listening. And do me a favor, share it with a friend. Thanks to John Fritze for joining me. You could find out more about the Supreme Court justice nomination on usatoday.com. We'll leave a link in the description as well. Thanks to Alexis Gustin for editing this episode. Taylor Wilson will be back tomorrow morning with 5 Things You Need to Know for Monday. And for all of us at Paste BN, thanks for listening. I'm James Brown. And as always, be well.