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Justice Breyer announced his retirement, and Biden spoke about who he'll nominate


Justice Stephen Breyer officially announced today he is stepping down from the Supreme Court at the end of this term, assuming a replacement is in place by then. At a White House event, President Biden praised Breyer for his decades of work in Washington, and he said this about the person he plans to nominate to succeed the justice.


PRESIDENT JOE BIDEN: The person I will nominate will be someone with extraordinary qualifications, character, experience and integrity, and that person will be the first Black woman ever nominated to the United States Supreme Court. It's long overdue, in my view.

KELLY: With me to discuss all this, NPR legal affairs correspondent Nina Totenberg and NPR White House correspondent Scott Detrow, who was in that room with Biden and Breyer. Welcome, you two.

SCOTT DETROW, BYLINE: Good afternoon.


KELLY: Scott, I'm going to give you the first word. The president there again saying he will nominate a Black woman to the Supreme Court. He will make history. What else struck you?

DETROW: Yeah, and recall that was a pledge that he made during the 2020 Democratic primaries. And it's worth zooming out and pointing out his judicial nominees have been extremely diverse so far, in terms of both the demographics of the picks, but also their professional experience - a lot more public defenders, for example, than had ever been nominated before.

Biden also talked a little bit about the timeline today in addition to saying he's certainly going to stick to that promise. He said he wants to have a deliberative process - talk to members of both parties about the pick. But still, he wants to announce the pick by the end of February. And this is notable - the White House really has not pushed back or disagreed with the really fast timeline that Senate Majority Leader Chuck Schumer has talked about of about a month from the announcement to the vote on the nominee.

KELLY: Now, another thing that caught my ear at today's event was Justice Breyer speaking and talking about how divided the country is right now - the kind of remarks we don't normally hear from a Supreme Court justice.

DETROW: Yeah, it was unexpected. You know, when Biden and Breyer first walked into the room, Breyer didn't give the indication that he was going to speak. In fact, he stood with his back against the wall, almost like he was a staffer at the meeting and not the retiring Supreme Court justice. Then he came to the lectern, and he delivered what really amounted to a plea to not give up on America, not give up on democracy - even quoting the Gettysburg Address at length.

TOTENBERG: This was the quintessential professorial Breyer. He said that although we're a country of every race, religion and point of view, we've decided to resolve our differences under law. But he had a warning, too.


STEPHEN BREYER: Go look at what happens in countries that don't do that. But I'll tell you what Lincoln thought, what Washington thought, and what people today still think - it's an experiment. It's an experiment. That's what they said.

KELLY: Nina, I can hear you trying to get a word in here. Let me push you to this next question I was going to ask, which is - the president's got to nominate somebody now. Who are the top contenders?

TOTENBERG: I think it's fair to say that Biden relatively recently interviewed Ketanji Brown Jackson before he nominated her to the D.C. Court of Appeals, and that's something that presidents don't usually do. So I think that indicates, at this moment, she's the first among equals.

That said, of course, there are other real contenders - the most prominent being California State Supreme Court Justice Leondra Kruger, her prior - who, prior to becoming a judge, worked for both the Bush and Obama administrations in the U.S. Solicitor General's Office, where she was a star and argued 12 cases before the U.S. Supreme Court.

KELLY: OK, so a couple of names there to keep our eyes on. Scott, just to talk politics for a second - what does this mean for President Biden at this moment of his presidency?

DETROW: Look, politically, it's an opportunity when he really needs it. He's been struggling. He's got bad poll numbers in two key states in the last few days, Wisconsin and Georgia, looking really underwater. And, of course, we've talked so much about it - two high-profile roadblocks in the Senate lately. This is a chance to turn that around.

KELLY: Nina?

TOTENBERG: One thing that they've done very well before at this White House is get through a lot of judges very quickly, and they're very experienced at doing it. Biden was the chairman of the Senate Judiciary Committee. His chief of staff was his top staffer then. And if they do that here, they can excite - if they can excite their base, that is something that they need very badly for the 2022 election.

KELLY: In the minute we have left, I'm going to ask you each for a kind of parting thought - what you're looking for, what you're listening for. Scott?

DETROW: You know, I'm really dwelling on this announcement today. Biden and Breyer are two men who really believe in institutions and achieving results, even when the results aren't anything - everything they wanted. They talked so much about that today. And that's really an increasingly unpopular view in politics, and especially in their party, and you could hear in both their voices - they almost seemed to worry it was the end of an era.

KELLY: Nina, last word?

TOTENBERG: Well, in fact, Biden talked about Breyer cycling across Washington to meet with his opposite number on the Republican side on a regular weekly basis so that they could decide what they could get done for the country, and it - he really - he was really wistful, talking about a time when people tried to cooperate to do what could be done for the country, not for their political parties.

KELLY: Right. NPR legal affairs correspondent Nina Totenberg and White House correspondent Scott Detrow. Thanks, you two.

DETROW: Sure thing.

TOTENBERG: Thank you, Mary Louise. Stay safe. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
Scott Detrow is a White House correspondent for NPR and co-hosts the NPR Politics Podcast.