Supreme Court Justice Stephen Breyer is retiring this year, giving President Biden his first opportunity to name a nominee for the Supreme Court. Biden had promised during the 2020 campaign (and reaffirmed at a press conference on Thursday) that his nominee will be a Black woman, the first ever named to the court. The three frontrunners for his nomination appear to be South Carolina District Judge Julianna Michelle Childs, California Supreme Court Justice Leondra Kruger, and Court of Appeals for the District of Columbia Circuit Judge Ketanji Brown Jackson.

Biden has also said he intends to make his selection by the end of February, which would be a month after Breyer’s announcement – but keeping deadlines is something he has been loath to do throughout his nascent presidency. Pressed on this, White House Press Secretary Jen Psaki deflected that “this is a priority for him… he’s already been reviewing bios of potential candidates. That’s something that he’s been doing since last year.” And given that Biden knew about Breyer’s impending retirement the week prior, it begs a point of comparison: President Trump nominated Amy Coney Barrett to the Supreme Court eight days after Justice Ruth Bader Ginsburg died. If Biden has been preparing for this for over a year, and known about it for a week, what’s the holdup?

This isn’t to say that Trump nominating Barrett a little over a month before an election and eight days after a sitting justice’s death is model behavior – Supreme Court Justices are a huge deal, they merit careful and intense consideration and vetting from a president – but Republicans knew that time was not on their side as they barrelled towards an election that Trump (and the Republican-controlled Senate) were forecasted to lose. This was a strategic choice, and Biden would do well to reflect on the urgency he faces in selecting a nominee because of the circumstances he finds himself in. He lacks the luxury of time that even Trump, a president up for reelection just weeks after naming his nominee, had. Here are three reasons why:

First: To Reset the Agenda

President Biden isn’t exactly known for being a powerful messenger. Compared to his predecessor, who had few substantive policies but whose words the world meticulously picked apart, Biden’s administration has been policy-heavy and rhetorically mild. This is not to say Biden has not tried to drive home a message – it’s more that by saying what he’s always been saying, there’s less for the media to propagate to the American people. The American public and its policymakers simply are not hanging on every word out of the White House – but now they will be. 

Biden’s agenda is floundering. Biden’s social spending Build Back Better bill is on the verge of being resuscitated for the third or fourth (honestly we’ve all lost count) time, the Democrats’ voting rights bill went down in the Senate earlier in January, and the administration’s vaccine mandate for large businesses was struck down at the Supreme Court and is being withdrawn. Biden needs a reset, and a Supreme Court nominee is something he has complete control over. A nomination will kick the Senate into gear, leveraging the spare time made abundant by the slowdown in legislation, and provide Democrats with a refresh. First a nominee, then a confirmation. Democrats should use the brief era of good feelings and party unity to let West Virginia Senator Joe Manchin draft a social spending bill he can get on board with, and 2022 will be not just the year of Build Back Better, but the beginning of build back Biden, too.

Second: To Dictate the Terms

It takes weeks to get a justice confirmed to the Supreme Court and that’s just if things go well. Usually it goes like this: the president makes a nomination, the Senate Judiciary Committee begins its background checks and its own vetting process, then there are a set of hearings before the Judiciary Committee votes to recommend the nominee to the full Senate (or not), and finally there are the procedural lineups and a vote by the full Senate to confirm (or not) the nominee to the bench. On average, the time between nomination and confirmation takes around two months.  

It has certainly been done faster – Ginsburg was confirmed in 42 days, Chief Justice John Roberts in 39, and Barrett in 27 days. But it sometimes runs longer, especially if there is controversy around the nominee, as was the case for Brett Kavanaugh (88 days) and Clarence Thomas (99 days). But that’s not the reason to act fast – Breyer said he plans to remain on the bench until the end of the current Supreme Court term and won’t leave until his successor is confirmed. The reason Biden should name his pick sooner rather than later from a scheduling standpoint is because it gives the varying interests on Capitol Hill less time to jockey for their own.

The last thing Biden needs in the 50-50 Senate is Manchin, Arizona Senator Kyrsten Sinema, Vermont Senator Bernie Sanders, or any of the other 47 members of the Democratic Caucus to step up first with a list of demands. In an evenly-divided Senate, every one of them has an effective veto. The longer the White House waits, the more time there is for one ideological senator in the Democratic Caucus to assert the nominee must have a stance to their liking on any number of potentially nominee-killing issues like policing, abortion, or gun rights. 

Third: Because Something Terrible Could Happen

Finally, Biden and the Democratic Senate should do well to remind themselves of one key difference between the situation Trump found himself in in September of 2020: their margin is zero. The Democratic majority, and now one of only three remaining Democratic appointees on the Supreme Court, are one tragedy away from complete catastrophe.

Morbidly, but seriously: a Senator could die or become incapacitated. There are six members of the Democratic Caucus that are over the age of 76. Two of them (one aged 80 and one aged 81) represent Vermont, a state with a Republican governor who is empowered to appoint an interim replacement. There are 13 members of the Democratic Caucus in total (the two in Vermont, two in Arizona, two in Georgia, two in Virginia, two in New Hampshire, one in Montana, one in Ohio, and one in West Virginia) who represent states with a Republican governor. There remains a pandemic that, even as recently as mid-January, scuppered a planned vote because a Democratic senator had to quarantine. And there are an alarming (and increasing) number of Americans who believe that violent action for political aims is acceptable.

In a 50-50 Senate, there is no luxury of time. The fate of the court hangs on a knife’s edge. The White House and Congress should act before it is too late.