Exactly when did Biden know Breyer would retire?

According to the White House, now-retiring Justice Stephen Breyer informed Joe Biden’s staff of his decision a few days prior to the leak that forced Breyer’s public announcement. Even with that story in place, the idea that Biden would only now begin his hunt for a black woman to become his nominee didn’t make much sense. Given how much emphasis Biden had placed on that campaign promise and how his progressive allies publicly pushed Breyer to step down, it seemed curious that Biden wouldn’t already have a candidate in mind.

A new report from the Washington Post makes that even more curious. Biden didn’t have only a few days’ notice — he had at least a couple of months to prepare:

Inside the White House, senior officials had known for months that Breyer’s retirement was almost imminent, long before he officially announced his decision in a letter to Biden last Thursday, according to two people with knowledge of the matter.

Late last fall, senior White House aides were informed Breyer was close to a decision, and they had expected him to make the announcement he would retire in early 2022, according to the people, who spoke on the condition of anonymity to disclose private conversations.

The news of Breyer’s expected retirement, a closely held matter inside the White House, reassured senior Biden aides that the president was extremely likely to have the opportunity to nominate a replacement justice before the midterm elections in November and allow him to fulfill a campaign promise to nominate the first Black woman to the Supreme Court.

Once White House officials knew Breyer’s retirement was likely imminent, they felt less pressure to ask emissaries to engage in conversations with the justice about stepping down at the end of this term, the people said.

There are some weasel-words in here suggesting that the knowledge wasn’t certain. Still, being “close to a decision” at Breyer’s age meant really only one thing. If this took place in “late last fall,” then we can add at least several weeks to the Biden administration’s knowledge that Biden would indeed get to fill a slot while Democrats controlled the Senate.

If that’s the case, why will it take yet another month to come up with a nominee? I raised this point last week when Biden publicly confirmed that he would honor his campaign pledge but suggested that he’d wait until the end of February to name his nominee, and that was when the timeline suggested he only had a few days’ notice:

“It is my intention,” Biden says at the end of this clip, “to announce my decision before the end of February. … I have made no choice at this point.” One has to wonder why not, no? Biden’s allies have been publicly demanding Breyer’s retirement for months, as a means to ensure his replacement by Biden rather than a Republican successor. Biden himself made this a campaign issue and a key part of his pitch to black voters. Are we to believe that Biden hasn’t prepared for this at all, even with the one-week private notice Breyer provided the White House?

With this Post background in place, the question becomes even more worthwhile. The Biden administration should have worked on its vetting for this possibility from Day One, even under normal political circumstances. (Donald Trump had published a list of nominees during the campaign and quickly settled on all three of his nominations from that list.) Given the precarious hold Democrats have on the Senate, speed should have been even more of the essence. After all, as Politico reported last week, Democrats are already nervous that they’re one pneumonia away from having to get Mitch McConnell to approve the nominee:

Just hours after the retirement announcement of Justice Stephen Breyer, the president was already facing increased pressure to get the gears of the nomination and confirmation processes moving. While Biden has said he intends to make his choice by the end of February, his history of missing major deadlines is causing concern. And some Democrats concede they’re already worried that a single illness, death or retirement could throw it all into chaos.

“You don’t know what the circumstances may bring, whether it’s the loss of a member or somebody crossing over to the other party,” said former Senate Majority Leader, Tom Daschle (D-S.D.), who led the last evenly-split upper chamber. “That’s something that ought to be very much on their minds right now.” …

“He should get the person confirmed right away,” said Marc Morial, president of the National Urban League. “Somebody in the Senate could resign, somebody in the Senate could die. The makeup of the Senate 50-50 could be altered by one career decision or tragedy. You can’t wait.”

There are two possibilities here. One is that this is just political theater, a sham process that will cover for the fact that Biden’s already made his decision. Perhaps Biden hopes that his allies will promote some wildly extreme candidates to make his already-chosen candidate look sober and independent by comparison. (If so, James Clyburn’s endorsement of Melissa Childs isn’t helping.) Or perhaps the White House knew that Biden’s pledge to narrow his candidates on race and sex would play badly and wanted to give a Kabuki-theater performance to make it look like Biden had to choose from an abundance, although that would largely negate the necessity of that pledge in the first place.

The other possibility is that Biden fumbled the ball and didn’t do any preparation for this moment until now. In any other administration, I’d scoff at that explanation. With this dilettante in the Oval Office, though, I’d consider it a real possibility. It’s the same president who didn’t heed warnings of the obvious inflationary aspects of his stimulus bill, who also didn’t bother to recognize supply-chain issues until they blew up in his face, and whose press secretary openly scoffed at mass distribution of COVID-19 tests to the stunned outrage of epidemiological experts. Not to mention the same president who insists to this day that he didn’t think the Taliban would quickly take over Afghanistan after we stripped the guts from the previous government’s military and abandoned them — as well as our own citizens.

I still suspect that the candidate has already been chosen and that it’s Ketanji Brown Jackson, who got appointed to the DC Circuit last year for obvious preparation for this opening. But I also recall Barack Obama’s trenchant warning about Joe Biden, too.

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