Supreme Court vacancy: How will it be filled?
Law professor and court expert Michael Gerhardt answers this and other questions from The Well following the announced retirement of Justice Stephen Breyer.
When Justice Stephen Breyer, 83, recently announced that he would step down from the Supreme Court at the end of the current term, The Well called upon one of the nation’s top experts to answer questions about what happens next.
Michael Gerhardt
It was a very local call.
Michael Gerhardt, Burton Craige Distinguished Professor of Jurisprudence in the School of Law, has participated in confirmation proceedings for seven of the nine justices currently on the Supreme Court. He was Special Counsel to the Senate Judiciary Committee on the Supreme Court nominations of Sonia Sotomayor (2009), Elena Kagan (2010), Neil Gorsuch (2017) and Brett Kavanaugh (2018).
President Joe Biden has announced that he will nominate a Black woman for the position. Why is this important?
More than 90% of the people who have served on the Supreme Court have been white men. No African American woman has ever served on the court, though there have been many African American women who have been among the most qualified to serve on the court. President Biden is committing himself to diversify the court, making it look more like the legal profession and the American people, whom the court serves.
What difference is it likely to make?
Appointing the first African American woman ever to the Supreme Court will be historic in diversifying the court to an unprecedented extent. The court will be addressing the most divisive and monumental constitutional issues of our time. Having a court that is more diverse ensures that its decision-making process will be better informed by the diverse experiences and perspectives of the justices deciding the case.
Who are the leading candidates?
The media is reporting a handful of well-qualified people for the vacancy. North Carolina’s Cheri Beasley, the former chief justice of the state supreme court, is one of the many excellent people on the list.
The Senate is evenly divided after the 2020 election, with a Democratic vice president as tiebreaker. How does this affect the confirmation process?
The Democratic majority, made possible because of the vice president’s tie-breaking vote, has no margin of error. With Republicans likely united in opposition, as they were in supporting inaction on President Barack Obama’s nomination of Merrick Garland to the Supreme Court, Democratic senators and the vice president must be united in support to make confirmation possible.
What questions are likely to come up during the confirmation proceedings?
There will be many questions that will be relevant to the process — and many that are not. Among those that are relevant are the nominee’s attitudes about precedent. That is, how much she would be disposed to respect precedents whose rulings or outcomes she might disagree with. They will also consider how collegial the nominee is. That is, how well she can work with justices of differing views and bring people of differing views to decide difficult cases. Among the irrelevant questions will be whether the nominee has voted and, if so, for whom, what books she likes to read and the mentors she has had.
