Kamala Harris floated as possible, if very unlikely, US Supreme Court nominee as Stephen Breyer prepares to retire

An outlandish theory suggesting US Vice President Kamala Harris will soon find herself in a new job has been rubbished by experts.

Legal and political experts have shut down an outlandish theory that US President Joe Biden could nominate his own Vice President, Kamala Harris, to fill a soon-to-be vacant seat on the country’s Supreme Court.

The United States was rocked today by the news that Justice Stephen Breyer, 83, plans to announce his retirement.

Justice Breyer is the most senior member of the Supreme Court’s progressive wing. His exit will give Mr Biden the chance to appoint a new progressive justice, potentially affecting the balance of the court for decades.

Justices serve for life, unless they choose to retire. At present, the conservative wing has a 6-3 majority, thanks largely to the three justices appointed by former president Donald Trump.

The person Mr Biden nominates will need to be confirmed by a majority vote in the US Senate, which is currently split 50-50 between Democrats and Republicans. In the event of a tie, Ms Harris will have the deciding vote.

Justice Stephen Breyer is about to step down. Picture: Mandel Ngan/AFP

‘Jumped the gun’: Messy announcement

Justice Breyer was reportedly blindsided by the news of his own impending retirement, as it leaked into the US media sooner than he expected today.

According to CNN, he told the White House of his plan to step down last week.

“I’m told Justice Breyer had firmly decided on his own to retire and that an announcement was due very soon,” reported Fox News’s Shannon Bream.

“And while it appears someone jumped the gun on that, better to characterise him as ‘surprised’ by events today than ‘upset’,” she stressed, walking back an earlier report that Justice Breyer was unhappy.

The Justice is now expected to make a formal announcement soon, with reports suggesting he’ll do so alongside Mr Biden, perhaps on Thursday US time.

Addressing reporters today, White House Press Secretary Jen Psaki was careful not to pre-empt Justice Breyer’s announcement.

“It’s always been the decision of any Supreme Court justice, if and when they decide to retire. How they want to announce it. And that remains the case today,” Ms Psaki said.

A reporter immediately asked, hypothetically of course, whether Mr Biden would honour his promise during the 2020 election campaign to nominate an African-American woman.

“As president, I’d be honoured to appoint the first African-American woman. Because (the court) should look like the country,” he said at the time.

“The President has stated and reiterated his commitment to nominating a black woman to the Supreme Court, and certainly stands by that,” said Ms Psaki.

“For today, again, I’m just not going to be able to say anything about any specifics, until Justice Breyer makes an announcement, should he decide to make any announcement.”

"The president has stated and reiterated his commitment to nominating a Black woman to the Supreme Court, and certainly stands by that." pic.twitter.com/8MBzjqvewY

— CSPAN (@cspan) January 27, 2022

Who will Biden pick?

You may have noticed that social media loves drama. So naturally, a bunch of people online have been speculating about the most dramatic scenario imaginable: the idea that Mr Biden could choose Ms Harris to fill the vacant seat.

One could mount an argument that she is qualified, given she is a lawyer by trade, and previously served as the district-attorney for San Francisco and attorney-general of California, though Supreme Court nominees traditionally have at least some experience on the bench.

And if we want to get all political – who doesn’t? – one could note that Ms Harris is not exactly breaking approval records as Vice President. “Give her a plum gig on the Supreme Court, pick a new VP, happy days for everyone,” the theory goes.

There are people on both the political left and right who do not think said theory is stupid.

Yes a black woman should fulfill Breyer SCOTUS seat and it should be Kamala Harris, and Stacy Abrams should become our VP.

— steven pasquale (@StevePasquale) January 26, 2022

Let’s not be naive—
Kamala Harris is clearly the ‘black woman’ Joe Biden is referring to in his promise to fill the Breyer #SCOTUS seat.

Question is—
Who are they planning for replacement as VP?

I’m hearing Hillary.

God help us.

— Tricia Flanagan (R-NJ) (@NewDayForNJ) January 26, 2022

There has been quite a bit of misgivings, grumblings, about Harris unfavorability ratings, etc., and how that would affect 2024. This would give the Dems and Biden and Harris a graceful off-ramp where everyone wins, including Harris.

— A.J. Delgado (@AJDelgado13) January 26, 2022

Also don't forget that by putting Harris in Breyer's vacant seat, she (and therefore, he) would be making history yet again, in a way Dems, Black voters and other groups might find it difficult to effectively oppose. People like being there when history is made.

— Mike Jordan: The Michael Jordan of Atlanta (@MichaelBJordan) January 26, 2022

Kamala Harris is only a year older than Brett Kavanaugh. She'd be on the court twenty years and no longer be a headache for Biden while being a reliably pro-business, pro-leftwing social policy vote.

— Erick Erickson (@EWErickson) January 26, 2022

“So this person has to be a woman, she has to be black and she’s got to be younger. Anybody thinking what I’m thinking?” wondered Fox News anchor Harris Faulkner.

“They don’t know what to do with Kamala Harris in the White House right now. And I can’t be the only person seeing this.”

However, to call the nomination of Kamala Harris unlikely would be an understatement.

“Let’s be very clear that the notion that Kamala Harris will be nominated is absurd,” constitutional law expert Alan Dershowitz told Newsmax.

“It will not happen. First of all, there’s a question of whether or not she could be confirmed. Remember, she has to cast the deciding vote. If all the Republicans and all the Democrats stay together, it’ll be a 50-50 tie, and you can’t confirm a justice with a 50-50 tie, and Vice President Harris can’t vote to confirm herself.

“Now, you know, there may be – there’s never been a situation like this, there may be ways around that, but it will not happen.”

Other legal experts have conceded there’d be nothing stopping Ms Harris from casting a tie-breaking vote for herself.

“The Constitution doesn’t place any conditions on the types of ties the Vice President can break,” political science professor Sarah Binder told Fox News.

“Yes, the Vice President casts the tie-breaking vote. Now, whether or not that’s in good taste is something else, and it could very well lead to further politicisation of the Supreme Court. But as a matter of procedure it seems to be pretty straightforward,” said James Wallner, a senior fellow at the R Street Institute with expertise in legislative procedure.

Mr Dershowitz’s scepticism is shared widely, however. Here are the thoughts of CNN’s political editor-at-large Chris Cilizza.

“This is, um, not going to happen,” he wrote today.

“Harris has chosen a life in elected office; she’s served continuously in office since 2004.

“She is next in line to be the president. Whenever Biden decides to call it quits (or loses re-election), she is without question the early favourite to replace or follow him.

“While the Biden team has said it wants to look for SCOTUS candidates with different resumes from the people currently on the court, there are plenty of credible candidates currently in the judiciary.

“Playing fantasy politics – candidates swapping offices to create new openings – is a favourite parlour game of Washington’s permanent political class. But on this one, it ain’t happening.”

US Vice President Kamala Harris. Picture: Kamil Krzaczynski/AFP

As he mentioned, there are multiple candidates who fit Mr Biden’s criteria, are more qualified than Ms Harris, are more likely to win confirmation from the Senate, and come without all the political headaches her nomination would entail.

Three names in particular are being mentioned all over the place today.

Judge Ketanji Brown Jackson, currently serving on a US Circuit Court, used to work as a clerk for Justice Breyer.

Justice Leondra Kruger, currently on the California Supreme Court, was also once a clerk for the federal Supreme Court and argued before it multiple times as a lawyer.

And according to the Associated Press, Mr Biden is also considering District Court Judge Michelle Childs, who’s a favourite among several high profile Democrats in Congress.

Any of those three are far more likely choices than the Vice President.

Originally published as Kamala Harris floated as possible, if very unlikely, US Supreme Court nominee as Stephen Breyer prepares to retire