Biden, who has been involved with a dozen Supreme Court nominations, is right. Before a nomination is even made, senators should take a private, non-binding straw poll for each member on the Supreme Court “short list.” The president would then have an idea, in advance, of just how bipartisan the real confirmation vote tally might be. That advice is also perfectly suited for our present moment, with an evenly divided Senate chamber. If the senators advise before they consent, Biden can still select one of his preferred nominees and, in the process, reverse the tide of the decades-long confirmation wars.
The notion of seeking senatorial advice before consent is not entirely novel. In June 2003, Senator Patrick Leahy of Vermont asked President George W. Bush “to consult with leaders in the Senate on both sides of the aisle in advance of any Supreme Court nomination,” in order to select a “consensus nominee.” Leahy, who chaired the Senate Judiciary Committee at the time, explained that the “Constitution divides the appointment power between the president and the Senate and expects senators to advise the president, not just rubber-stamp his choices.” The Bush administration snapped Leahy’s olive branch, but the idea has stayed with me. In my view, senators could take non-binding votes on a range of potential nominees before a nomination is made, thus advising before consenting.
This proposal could be implemented in three steps. First, senators would assemble a roster of potential nominees. This step is fairly straightforward because Biden’s “short list” is very public. Second, the Democratic and Republican Senate caucuses could meet privately and take a non-binding straw poll for each possible nominee. Third, the Senate majority and minority leaders could release those results to the president. This information would inform Biden about how large of a bipartisan majority he might expect on an eventual roll call confirmation vote. It could make the difference between a 50-50 vote, with Vice President Kamala Harris breaking the tie, and a Senate supermajority.
Given current politics, it is safe to presume that all 50 Democratic senators would support anyone Biden nominates. But Republican support may vary. Consider how the votes could break down for three potential nominees.
First up is Justice Leondra Kruger of the California Supreme Court. She has never faced a U.S. Senate confirmation vote. Indeed, according to reports, she twice turned down President Biden’s offer to become U.S. solicitor general, thus passing up an important opportunity to appear before the Senate. Her fate would be uncertain. For Kruger, a straw poll could shed some insights as to how she might fare in a real confirmation vote.
A second leading contender is Judge Ketanji Brown Jackson. President Obama appointed Jackson to the federal district court in the District of Columbia in 2013. She was confirmed by a voice vote. And in 2021, President Biden nominated Jackson to the U.S. Court of Appeals for the D.C. Circuit. She was confirmed with 53 votes, including three Republican ayes. As the saying goes, past performance is no guarantee of future results—especially for the Supreme Court. But it stands to reason that at least some of those same Republican aisle-crossers would back Jackson for the Supreme Court. A straw poll could still shine a light on Jackson’s potential confirmation vote breakdown.
Then there is Judge J. Michelle Childs. President Obama nominated Childs to the federal district court in South Carolina. She was also confirmed by a voice vote. And in December 2021, Biden nominated Childs to the D.C. Circuit. She may have even greater potential for Republican support than Kruger or Jackson. House Majority Whip Jim Clyburn, a Democrat from South Carolina, is championing Child’s cause. And Clyburn has said that both of South Carolina’s Republican senators have seen Childs in a “favorable light.” Childs also attended college at the University of South Florida—she may be able to curry favor with Florida’s two Republican senators. Plus, Childs, who earned her law degree from the University of South Carolina, is unique on the short list for not attending an Ivy League institution. Other Republican senators, who managed to succeed despite not graduating from elite universities, might find her nomination personally appealing. Once again, a straw poll could project with some clarity how Childs would ultimately fare.
President Biden and Justice Stephen Breyer are throwbacks to a bygone era in the Senate. Nearly three decades ago, Biden presided over Breyer’s confirmation hearing in the Senate Judiciary Committee. Ultimately, the experienced jurist was overwhelmingly approved by an 87-9 vote chamber-wide tally. Breyer’s confirmation, alas, was a high-water mark for the Senate. Chief Justice Roberts received 78 votes, Justice Sotomayor 68 votes, Justice Kagan 63 votes, Justice Gorsuch 54 votes and Justice Kavanaugh 50 votes.
The next Supreme Court nominee could split 50-50, with Vice President Harris breaking the tie. Or, the vote could be bipartisan. By providing advice before consent, senators could help President Biden accomplish his two goals—appoint a Supreme Court nominee who meets his criteria, and ratchet down the simmering tension afflicting the confirmation process.
Josh Blackman is a constitutional law professor at the South Texas College of Law Houston and the co-author of An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.
The views expressed in this article are the writer’s own.
