Durbin Says Age Is A Factor In Choosing Next Supreme Court Justice

Senate Judiciary Chair Dick Durbin (D-Ill.) confirmed on Sunday that age is a factor in choosing the next Supreme Court nominee to potentially replace Justice Stephen Breyer.

Durbin, whose committee is responsible for handling the nominee’s confirmation process, told NBC’s “Meet the Press” that Democrats are looking for younger candidates to take Breyer’s seat on the bench. The 83-year-old justice announced his retirement last week.

“It’s a factor, I’m not going to mislead you, in the selection of judges at every level,” the senator told host Chuck Todd. “I have a lot of my friends here in Chicago who are attorneys in their 60s who would like to cap off their career by being a federal judge. It doesn’t really make sense, you know, when you consider how little time they’re likely to serve before they reach senior status or leave completely.”

Breyer, a moderate liberal justice who was nominated by President Bill Clinton, is the oldest member of the Supreme Court. Because of his age, liberal activists began calling for his retirement so that President Joe Biden could nominate a younger justice to the lifetime position while he’s still in office. Breyer will serve on the high court until the Senate confirms his replacement.

Democrats hope Breyer’s retirement will help them avoid what happened when the late Justice Ruth Bader Ginsburg refused to retire while Barack Obama was president. Ginsburg died near the end of President Donald Trump’s term, allowing him to nominate a third younger, conservative justice — Amy Coney Barrett — to the bench, which will likely reshape the court’s politics for decades.

“We do look for younger candidates, younger by Supreme Court and federal court standards, but it’s done on both sides,” Durbin said. “I don’t think there’s any surprise that both Republicans and Democrats would like some longevity in the service.”

Barrett was confirmed 27 days after her nomination, something Durbin has decried before. When asked what the timeline for the next nominee’s confirmation looks like, the senator said it “depends on the nominee.”

“If the person has been before the committee seeking approval for a circuit court, then the committee knows quite a bit about that person, and that can be taken into consideration. If there are no new developments for someone who’s been before the committee in the previous year or two, it makes a real difference,” he said.

“I can just say this: It’s going to be fair, it’s going to be deliberate and we’re going to be timely about it too. This is a lifetime appointment to the highest court in the land. We should take it seriously,” he added.

Since his presidential campaign, Biden has committed to nominate a Black woman to the Supreme Court if given the chance. Among the names that have been floated as his potential choice are Ketanji Brown Jackson, a U.S. appeals court judge in Washington, D.C.; California Supreme Court Justice Leondra Kruger; J. Michelle Childs, a federal district court judge in South Carolina; Leslie Abrams Gardner, a federal district judge in Georgia; and civil rights attorney Sherrilyn Ifill.

Jackson, 51, has appeared before the Senate Judiciary Committee, receiving 53 votes that landed her a seat on the D.C. circuit. She also used to serve as Breyer’s law clerk, and recently was part of a three-judge panel that ruled against Trump’s effort to block documents from the House committee investigating the Jan. 6, 2021, Capitol riot.

While Jackson appeared to check the boxes on what Durbin said he’s looking for in a candidate, the senator refused to say if he had a favorite candidate, and if so, what he’s told the president.

“I’m going to trust his judgment on this. I don’t want to put the finger on the scale for any one of the nominees. I think there is some extraordinary talent there,” Durbin told George Stephanopoulos on ABC’s “This Week.”

“And going back to the point I made earlier, for these African American women to have reached the level of success that they have reached, they are extraordinary people. They have been put to the test,” he continued. “They are the first in many instances of their race and gender to be in this position. So that extraordinary talent, I think, should be taken into consideration on a favorable side.”