Biden on Supreme Court pick: Constitution is 'always evolving slightly' on rights

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President Biden on Tuesday said there is "always a renewed national debate" surrounding presidential nominations to the Supreme Court, saying it is due to the fact that the U.S. Constitution is "always evolving slightly" on rights.

Biden, on Tuesday, met with Senate Judiciary Committee Chairman Dick Durbin, D-Ill., and committee ranking member Chuck Grassley, R-Iowa, to discuss the impending vacancy to the court after Justice Stephen Breyer retires.

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Biden has promised to nominate a Black woman to the high court to fill Breyer’s seat, and said Tuesday that he wants "the advice of senators as well as the consent" as he determines who he will appoint, and so that they "can arrive on who the nominee should be."

President Biden delivers remarks on the retirement of Supreme Court Justice Stephen Breyer in the Roosevelt Room of the White House on Thursday, Jan. 27, 2022. (AP Photo/Andrew Harnik)

"You know, there’s always a renewed national debate, every time we nominate, any president, nominates a justice, because the Constitution is always evolving slightly in terms of additional rights, or curtailing rights," Biden said. "And it’s always an issue."

"And there are several schools of thought, in terms of judicial philosophy," Biden added.

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The president said he is looking for a candidate "with character" and a judicial philosophy that "suggests that there are unenumerated rights to the Constitution and all the amendments mean something, including the Ninth Amendment."

The Ninth Amendment states that the "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

According to the Annenberg Classroom, the Ninth Amendment is a "constitutional safety net intended to make clear that individuals have other fundamental rights, in addition to those listed in the First through Eighth Amendments."

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"Some of the framers had raised concerns that because it was impossible to list every fundamental right, it would be dangerous to list just some of them (for example, the right to free speech, the right to bear arms, and so forth), for fear of suggesting that the list was complete," the Annenberg Classroom states.

Meanwhile, Biden said he intends to make his decision on a nominee and share it with his "colleagues by the end of the month." 

"That’s my hope," the president said. "And I’m looking forward to their advice on how to proceed and how the hearings will be conducted."

Last week, the White House said Vice President Kamala Harris and White House chief of staff Ron Klain will play a role in the nomination process, and White House counsel Dana Remus, senior adviser Cedric Richmond, Paige Herwig, a member of the White House Counsel’s office, and Louisa Terrell, the director of the White House Office of Legislative Affairs, would play "central" roles in the process of selecting a nominee. 

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Potential nominees on Biden’s short list include U.S. Circuit Judge Ketanji Brown Jackson, California Supreme Court Justice Leondra Kruger, U.S. District Judge Leslie Abrams Gardner – the sister of Democratic Georgia gubernatorial candidate Stacey Abrams – and U.S. District Judge J. Michelle Childs, the choice floated to the president by House Majority Whip Jim Clyburn, D-S.C. 

Breyer officially notified the president of his intent to retire at the end of the court’s current term last week. 

Biden's promise to consider only Black females to fill Breyer's seat on the Supreme Court has been met with criticism from Republicans.  Former South Carolina Gov. Nikki Haley said the move equated to a race and gender litmus test. Sen. Roger Wicker, R-Miss., said it was a form of affirmative action. 

"I’d remind them to take a look back at history and recall that it was Ronald Reagan who announced that he was going to appoint a woman to the Supreme Court, and he did, Sandra Day O’Connor, and it was Donald Trump who announced that he was going to replace Ruth Bader Ginsburg with a woman nominee as well," Durbin said Sunday, coming to Biden’s defense. "So, this is not the first time that a president has signaled what they're looking for in a nominee."

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Durbin added that he is "going to trust his judgment on this." 

"I think there is some extraordinary talent there. And going back to the point I made earlier, for these African women to have – African American women to have reached the level of success that they have reached, they are extraordinary people," Durbin said during his appearance on ABC’s "This Week." "They have been put to the test. 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."

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"If they have achieved the level of success in the practice of law and jurisprudence, they've done it against great odds. They're extraordinary people, usually the first of anything in the United States turns out to be extraordinary in their background. And the same is true there," Durbin continued, referencing the Black women being considered for the nomination. "They’re all going to face the same close scrutiny. This is a lifetime appointment to the highest court in the land. And I just hope that those who are critical of the president's selection aren't doing it for personal reasons." 

Fox News' Danielle Wallace and The Associated Press contributed to this report.