Biden Urged to Pick Sitting Judge for Supreme Court Nominee

(Bloomberg) -- President Joe Biden would have a smoother path to getting his Supreme Court nominee confirmed by the Senate, and potentially drawing Republican votes, if he chooses a sitting judge, Senate Judiciary Chair Dick Durbin said Monday.

“Historically, that's been the standard,” Durbin told reporters. “There have been exceptions in the long history of the Supreme Court -- quite a few exceptions, I believe. But being a sitting judge is important. There's nothing spelled out in the Constitution that requires it, but it certainly makes the argument more credible.”

On the current court, Justice Elena Kagan was U.S. solicitor general before she was confirmed in 2010 and is the only justice who didn't have experience as a judge before being nominated. Justices without previous judicial posts were somewhat more common in earlier decades.

Durbin, who also is the No. 2 Democratic leader in the Senate, said he's reaching out to Republicans who he thinks are “open to the idea” of supporting a Biden nominee and sees some prospect of picking up support.

“I want to make this a bipartisan vote for filling this vacancy,” added Durbin. “I think it's not only good for the Supreme Court, it's good for the Senate.”

The president will meet on Tuesday with Durbin and Senator Chuck Grassley of Iowa, the top Republican on the Judiciary panel.

Biden said last week that he'll announce his choice to replace retiring Justice Stephen Breyer by the end of February, and that he'd use the opportunity to fulfill his campaign promise to nominate the first Black woman to the Supreme Court.

Leading candidates include U.S. Circuit Judge Ketanji Brown Jackson, 51, whom Biden successfully appointed to the powerful federal appeals court in Washington; U.S. District Judge Michelle Childs, 55, whose nomination to the same appeals court is now pending in the Senate; and California Supreme Court Justice Leondra Kruger, 45.

White House Press Secretary Jen Psaki said Monday Biden is “reviewing a number of potential candidates” and that the list is “bigger than a few.”

Durbin, the senior senator from Illinois, said he has no preferred candidate and won't be suggesting one to Biden.

Once Biden makes his decision, Senate Majority Leader Chuck Schumer wants to confirm the nominee in about 30 days, similar to the timetable set by Republicans to elevate Amy Coney Barrett after then-President Donald Trump nominated her just six weeks before the 2020 presidential election.

Durbin said he also wants to move quickly and have hearings in “a fair and timely way.” One concern is the Democrats narrow control in a 50-50 Senate rests on every member of the party staying healthy and able to vote.

“I worry about it every day,” he said. “I say to members of my committee and staff, don't waste time.”

Democrats can act fast and confirm a nominee on a simple majority vote after Republicans in 2017 permanently changed Senate filibuster rules to get Trump's first Supreme Court nominee, Neil Gorsuch, to the bench.

But to succeed, the Democrats must maintain their fragile voting coalition through what's expected to be an onslaught of attacks on the nominee from Republicans and their outside allies.

Republicans have broadly opposed Biden's court picks, but some have drawn GOP support. Jackson won Senate confirmation last June to the appeals court in Washington with the support of GOP Senators Susan Collins of Maine, Lisa Murkowski of Alaska and Lindsey Graham of South Carolina.

Graham on Sunday signaled support for Childs, who also is from South Carolina, calling her “highly qualified” and “an awesome person.”

Senator John Cornyn, a Texas Republican, said Biden's choice will determine whether the nominee get any Republican votes.

“There's plenty of people he could choose that would not be particularly controversial, maybe not our choice, but recognizing that it's his choice to make it at least initially,” Cornyn said. “But it's going to depend on whether he's strong enough to stand up to some of the more radical folks in his political base.”