Opinion

Biden should have picked bipartisanship. Instead, he picked Ketanji Brown Jackson.

This Supreme Court pick could have been different, but the president missed his chance

President Biden's nomination of Judge Ketanji Brown Jackson immediately elicited disappointment from the two Republican senators from South Carolina, but not for the reasons you might expect. Both Sens. Lindsey Graham and Tim Scott said they would have preferred Biden rolled out a different, mostly liberal nominee from their home state, Judge Michelle Childs, whom they were inclined to support to become the first Black woman on the high court.

It was a rare opportunity for bipartisanship that wouldn't have made much of a difference in terms of the ideological balance of the Supreme Court. Both Jackson and Childs are marginally more liberal than retiring Justice Stephen Breyer, though Jackson is probably the most liberal of the three. But not that liberal, White House Press Secretary Jen Psaki effectively assured reporters at a briefing Friday. 

"She's ruled in favor of Republicans and Democrats, she's ruled for and against the government, regardless of whether the government is led by a Democratic president or a Republican president," she said. "Litigants, lawyers, and judges across the ideological spectrum appreciate her ability to be an impartial adjudicator, and that's exactly what you want … She's even clerked for three different federal judges who were appointed by presidents of different political parties."

An odd argument to make, given that Childs was so clearly bypassed to satiate a base mourning late Justice Ruth Bader Ginsburg, still bitter about Senate Republicans blocking Merrick Garland, and basically wanting to take the fight to Senate GOP Leader Mitch McConnell. 

But Biden, not for the first time, has decided to bypass the bipartisanship that he promised to suburban voters who helped put him in the White House. Instead, he has tried to keep a commitment to the second set of voters he had to persuade — the most left-wing members of his party, who had not turned out in sufficient numbers in the battleground states in 2016, and who he enticed with promises to let Bernie Sanders turn him into the most progressive president since Franklin D. Roosevelt.

It was always going to be difficult to be FDR 2.0 in an era of political polarization and a bipartisan dealmaker at the same time. Biden's appeal to one of these sets of voters was always likely to fall by the wayside. Except he has not had much success delivering for the left, either.

Biden's biggest legislative accomplishment came the one time he did bypass the most liberal Democrats and go bipartisan: the $1.2 trillion infrastructure package he is so furiously traveling the country to sell even after its passage. Progressives didn't want to pass it before their own incredible shrinking reconciliation bill — first $10 trillion, then $6 trillion, then $3.5 trillion, then less than $2 trillion — for fear of being double-crossed by the GOP and moderate Democrats.

Well, infrastructure week finally came, and Build Back Better is at best languishing in congressional purgatory and is most likely to land at its final destination alongside Hillary Clinton's 1994 health care bill and the last half-dozen unpassed comprehensive immigration reform measures.

A 50-50 Senate where Biden needs the votes of the least liberal Democrats — including one representing Donald Trump's best state in the last two presidential elections — is not conducive to passing the entire progressive wishlist. The Democrats' House majority is barely bigger, though Speaker Nancy Pelosi has more control. With the midterm elections coming up in November, those razor-thin majorities may soon be deader than Build Back Better.

Still, the Democrats have bet that they should ram through as much as they can while they still have their majorities. So even if Jackson and Childs would have voted the same way on abortion, affirmative action, guns, and any of the other dozen or so issues that prompt voters to care about Supreme Court nominations in the first place, going for the incrementally more liberal pick was ultimately deemed more important than getting a few extra Republican votes.

Perhaps this time it will work. A handful of Republicans could still vote for Jackson, though it appears her confirmation process will be at least somewhat more difficult than Childs' would have been. Conservatives will continue to command a 6-3 majority, and Breyer won't be around to pry Chief Justice John Roberts loose from this bloc.

But unlike with ObamaCare when Biden was vice president, it mostly hasn't worked. And those majorities from a dozen years ago were much bigger before they too were wiped out in a midterm election cycle.

Liberals keep asking Biden to go big or go home, and he keeps heeding their advice to no obvious effect. This Supreme Court pick, however historic, could have been different — but wasn't.

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