Historic but overshadowed? Biden's Supreme Court pick forced to share spotlight with Ukraine crisis
WASHINGTON – President Joe Biden was all smiles as he eased up to the cameras to introduce his historic nominee to the Supreme Court late last week, relishing a moment of positive news after months of punishing developments at home and abroad.
But if Democrats hoped the introduction of U.S. Circuit Judge Ketanji Brown Jackson as the first Black woman named to the nation's highest court would be a clean victory for an embattled president, Russian President Vladimir Putin made clear he had other plans.
"As we watch freedom and liberty under attack abroad," Biden began, "I'm here to fulfill my responsibility under the Constitution to preserve freedom and liberty here."
Under different circumstances, the selection of a Supreme Court nominee would have given the president a chance to reset his message and refocus the nation's attention on a win. Instead of the days of frenzied buildup that often accompany the rare opportunity – instead of the prime-time platform presidents regularly use to introduce their picks – Biden was forced to work with a split-screen image of Russian forces pushing their way toward the Ukrainian capital of Kyiv.
Questions about Ukraine dominated the White House news briefing this month on the same day Biden met with his three short-list candidates to replace Associate Justice Stephen Breyer. As the news broke late Thursday that the president had made up his mind about whom to nominate, the nation was transfixed by images of Ukrainians fleeing their homes and a second night of explosions across the country.
Jackson's nomination is historic, a step toward ensuring that an institution that has been overwhelmingly white and male throughout its 233-year history better reflects the nation. Of 115 justices who have served on the Supreme Court since 1789, all but seven have been white men. Although the news made the front pages of newspapers Saturday, most gave far more play to the crisis unfolding in Europe.
"Her moment in the spotlight is certainly overshadowed," said Todd Belt, professor and political management program director at George Washington University. "I’m sure Biden would have wished this was not the case because it's such a historic nomination."
When President George W. Bush announced Chief Justice John Roberts as his nominee in 2005, broadcast networks carried the news live in prime time. President Donald Trump got the same treatment in the first month of his presidency, when he named Associate Justice Neil Gorsuch to the Supreme Court.
That sort of coverage is not a given: President Barack Obama announced three nominees – two of whom were confirmed – during the morning hours. The announcement isn't the only opportunity for a president to tout his nominee. Several observers said Biden will get another crack at it.
"It will not get the attention it normally would today, for sure," said David Axelrod, a former senior strategist for Obama. "But the focus will be later, during her confirmation hearings, when she will get sustained coverage."
Biden's pitch will begin anew Tuesday, when the president will have the opportunity to tout Jackson – and try to set the stage for her confirmation – at his State of the Union address. But the crisis in Ukraine will also be a major theme.
Supreme Court nominations may not drive a boost in polls for a president, but many saw Breyer's retirement announcement last month as a needed reset opportunity for Biden – a chance to talk about something other than the brutal omicron wave of COVID-19, soaring inflation and energy prices and a domestic agenda that has faltered, exposing rifts between liberals and centrists in the president's party.
Biden's approval rating has been underwater for months. The Real Clear Politics polling average puts it at 41%, right where Trump was in the second year of his presidency.
"We know that this has been a rough couple of months for Biden," said Norman Ornstein, an emeritus American Enterprise Institute scholar. "All of those things have hurt him, and this was an opportunity ... to get that reset and build some enthusiasm."
Jackson, a Harvard Law School graduate who clerked for Breyer during the Supreme Court's 1999-2000 term, will present challenges for Republicans. She was confirmed in June for a seat on the U.S. Court of Appeals for the D.C. Circuit, the second most important court in the nation, picking up three GOP votes. Though many Republicans criticized her approach to the law, the criticism rested on general concerns about her judicial philosophy rather than specific opinions, statements or controversies.
What's next for Jackson? A high-profile confirmation process.
Some conservatives acknowledged that although they may not agree with all of her opinions, Jackson is squarely within the mainstream.
Donna Brazile, a veteran Democrat strategist and analyst, dismissed the idea that the Ukraine crisis takes anything away from the significance of Biden's nomination. The announcement wasn't about scoring political points, she suggested, but choosing a qualified candidate to serve on the court.
"History versus horse race politics," she said. "I go with history every time."
Instead of building momentum for Jackson in the days before her selection, the White House had to constantly recalibrate its response to Putin, imposing sanctions, orchestrating an address and news conference after the invasion and meeting with allies and national security staff. Hours before he named Jackson, Biden attended a virtual emergency NATO meeting in the White House Situation Room.
As the situation escalated in Ukraine, Senate Democrats – anxious to begin the confirmation process – urged the White House to hold to its self-imposed end-of-the-month deadline for announcing a nominee. Senior administration officials were adamant that Biden would stick to his initial timeline, no matter what happened in Ukraine.
"We have to do a lot of things around here at the same time," White House press secretary Jen Psaki said.
Rather than drawing a large crowd into the spacious East Room, the White House chose the more intimate setting of the Cross Hall to introduce Jackson. First lady Jill Biden watched from seats alongside Jackson’s husband, Patrick, and Leila, one of their two daughters. About 20 White House aides looked on.
Some observers predicted the focus on Ukraine could take some of the heat off the upcoming confirmation fight, a process that can quickly become a partisan and emotionally charged spectacle. That was true for nominees Brett Kavanaugh, who was narrowly confirmed in 2018 after decades-old allegations of sexual assault that he denied, and Amy Coney Barrett, who was sped through the process before the 2020 presidential election.
Elizabeth Simas, a political scientist at the University of Houston, said that if Ukraine continues to command attention it might give opponents of Biden's nominee – including Republicans on the Senate Judiciary Committee considering a run for president in 2024 – a better issue to focus on than the first Black woman named to the high court.
"Republicans have more of an excuse for not fighting back – there were more pressing matters at hand," Simas said. "That is, they can try to spin it not as a loss but as a necessary step to allow for attention on Ukraine and the subsequent fallout."
Belt, the George Washington University professor, agreed.
"You want them to proceed as quickly as possible without any speed bumps," Belt said of how presidents view confirmation battles. "I don’t want to say this is good news for her – because it’s certainly not – but it could speed the process."
Americans will quickly be able to see whether that strategy pans out: Democrats, who have a razor-thin majority in the Senate, hope to confirm Jackson by early April.