To replace Breyer, Biden must pick a progressive who will serve the high court for decades

President Biden should select the Supreme Court justice that Democrats will want on the bench in 2040 and 2050. The person nominated to replace Justice Stephen Breyer should be as far to the left as President Trump’s nominees are far to the right. The court is unbalanced in part because Republican presidents tend to pick extremely conservative justices, while Democratic presidents pick moderates.

It should not be this way, however, I fear that Biden will face a great temptation to pick a moderate to replace Breyer. This justice would not change the current ideological balance on the Supreme Court. There would continue to be six conservative justices appointed by Republican presidents and three liberal justices appointed by Democratic presidents. The easiest path for Biden is to pick a centrist who’s likely to be easily confirmed. But this approach would squander the opportunity before Biden while ignoring the fact that Supreme Court justices often remain on the bench for decades.

If, for example, Biden selects California Supreme Court Justice Leondra Krueger, who is 45 years old, and she remains on the Court until she is 83, Breyer’s age, she will be a justice until the year 2060. Amy Coney Barrett was 48 when she was confirmed, and if she remains a justice until she is 87, the age at which Justice Ruth Bader Ginsburg died, Barrett will be a justice until the year 2059.

Biden and the Democrats should not be intimidated into picking a moderate by Senate Republicans, led by Minority Leader Mitch McConnell, who is urging a deliberately slow process. Remember that McConnell rushed through the 2020 confirmation of Coney Barrett in record time during the waning months of President Donald Trump’s administration.

But in the previous election year of 2016, when the president was a Democrat named Barack Obama, Republicans blocked hearings for Merrick Garland’s nomination to the Supreme Court by claiming that a president should not be able to fill a high court vacancy in an election year.

After Breyer announced his resignation, Republican National Committee Chairwoman Ronna McDaniel tweeted, ”We know Biden will appoint a far-left, activist judge who won’t protect your freedoms.” This comment, of course, came after Trump appointed three of the most conservative federal court of appeals judges in the country to the Supreme Court. They are now poised to overrule Roe v. Wade and take away reproductive freedom.

For too long, especially in appointments to the lower federal courts, Republican presidents have picked very conservative judges, while Democratic presidents have selected moderates. Overall, the Trump picks for the federal courts of appeals are far more conservative than the Obama-selected judges are liberal. Biden should not shy away from picking a Supreme Court justice in the mold of Ginsburg or Justice Sonia Sotomayor. Nor should he shy away from expressing the desire for a justice who will interpret the Constitution to advance equality and enhance freedom.

Of course, the challenge for Biden is that the Senate is evenly split, and getting the votes of any Republican senators is uncertain at best. But it’s hard to imagine that senators like Joe Manchin or Kyrsten Sinema will vote against an impeccably qualified Black woman. The list of the most likely nominees is filled with terrific judges, such as Ketanji Brown Jackson, a federal court of appeals judge in Washington, D.C., and Michelle Childs, a federal district court judge in South Carolina.

Picking a Supreme Court justice is one of the most long-lasting legacies of any president. Biden must not squander this opportunity and should select a justice who will be a progressive leader on the court for decades to come.

This story was originally published February 2, 2022 at 5:30 AM.