Key Senator in Confirming Biden's Supreme Court Pick Says Age 'Is a Factor': 'We Do Look for Younger'

Presidents of both parties have historically preferred nominees in their 40s or 50s.

Photo: Susan Walsh-Pool/Getty Images

Sen. Dick Durbin, who will play a key role in confirming President Joe Biden's nominee for the Supreme Court, says the process will be "fair," "deliberate" and "timely," but admitted that age should be a consideration when making a lifetime appointment.

After Justice Stephen Breyer announced his retirement last week, Biden reiterated his campaign promise to pick a Black woman to replace him on the bench and said he would consider the advice of senators from both parties as he makes his decision in the coming weeks.

Durbin, a Democrat who chairs the Senate Judiciary Committee, offered a partial look at his own thinking and how he might advise Biden as the president and his advisors vet candidates.

Asked about a nominee's age by Chuck Todd on Sunday's Meet the Press, Durbin, 77, said, "It's a factor, I'm not going to mislead you, in the selection of judges at every level."

"I have a lot of my friends here in Chicago who are attorneys in their sixties who would like to cap off their career by being a federal judge," Durbin continued. "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."

Supreme Court nominees must be approved by the committee Durbin currently chairs before the entire Senate votes. If confirmed, the new justice will serve for life, per the U.S. Constitution.

Supreme Court Associate Justice Stephen Breyer. Andrew Harnik/AP/Shutterstock

While younger candidates can face scrutiny for a relative lack of experience — when compared to an older, more experienced one — presidents of both parties have typically preferred jurists in their 40s or 50s.

The privilege of placing a new justice on the high court means a president's influence there can last for decades after he or she has left the White House.

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

Former President Donald Trump made three Supreme Court appointments in the four years he was in office. Justice Neil Gorsuch was 49 when he took the oath in 2017; Justice Brett Kavanaugh was 53; Justice Amy Coney Barrett was 48.

Justice Clarence Thomas was 43 when President George H. W. Bush nominated him in 1991. Now, 30 years later, Thomas is 73 and will be the oldest member of the court after Breyer, 83, leaves at the end of the term.

Supreme Court justices. Erin Schaff-Pool/Getty

The oldest person to ever serve on the Supreme Court was Justice Oliver Wendell Holmes, Jr., who retired in 1943 at 90 after serving nearly 30 years.

Durbin also addressed timing after Biden said last week he will make a decision before the end of February and that his expectation is for the Democratic-led Senate to "move promptly" in confirming his nominee (almost certainly before the November midterms).

"A great deal, maybe all of it, depends on the nominee and the background of the nominee," the chairman said, adding that a nominee who's been confirmed previously by the Senate for another post would probably move quicker down the path to confirmation for the Supreme Court.

"We're going to be timely about it," Durbin said. "This is a lifetime appointment to the highest court in the land. We should take it seriously."