Joe Biden spoke further on his upcoming Supreme Court nomination during an interview this week with NBC News. He said that he is not looking to make an “ideological choice” for the person he hopes will replace retiring Associate Justice Stephen Breyer.
Regarding his first nomination to the high court, he said he is looking for a candidate with the “same kind of capacity” as Breyer. He said that he expects to pick someone who reads the Constitution consistently with the “mainstream interpretation.”
Biden said that he has reduced his list down to about four people and has been conducting a “deep dive” into the background of each to determine if there is anything that could disqualify them from service. He stuck by his promise during the 2020 presidential campaign that he would choose a black woman for the nomination.
He has also said that he believes there is a “renewed national debate” with every Supreme Court nomination because the “Constitution is always evolving slightly” regarding new rights or “curtailing” existing rights.
Biden said he wants to find a judicial philosophy that believes in “unenumerated” Constitutional rights. He said that every amendment “means something,” including the Ninth Amendment.
The plain language of the Ninth Amendment indicates that the founders intended for all interpretations of the federal Constitution only to grant the federal government the power to abridge the natural rights of citizens when specifically authorized by the Constitution to do so.
The Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Biden is likely signaling concern about the upcoming decision from the Supreme Court in the potentially landmark abortion case of Dobbs v. Jackson Women’s Health Organization. The court is expected to issue that ruling by the time the court’s current term ends in June.
The Dobbs case has the potential to overrule the 1973 abortion case, Roe v. Wade, that prohibits states from interfering with abortions in many situations. Roe relies heavily on a reading of the Ninth Amendment that creates a federal right to abortion. As a result, many scholars and judges have criticized the purported reasoning of the Roe case for almost a half-century.