Liberal Justice Steven Breyer, age 83, has announced that he will be retiring at the end of this term. This is exactly what Democrats across the country, including many disrespectful members of Congress, have been clamoring for.
This vacancy now presents both an opportunity and a very difficult challenge for President Biden. He will be able to appoint Breyer’s replacement while the Democrats control the Senate, but making a nomination and getting that nominee confirmed are two very different things.
First, who will Biden nominate? Well, that’s the first challenge because he has to satisfy two very different constituencies. The Marxist left of his party will insist on a left-wing judicial activist in the vein of the Wise Latina, Justice Sonya Sotomayor. However, in an evenly divided Senate in which four Democrats from purple swing states are up for reelection this year and one other Democrat represents the most solid red state in the country, Biden will have difficulty getting a radical in that vein confirmed, as I discuss later in this article.
Biden has indicated in the past that, consistent with his party’s obsessions with identity politics, he will nominate a black woman (which would be a first in American history). He chose Kamala Harris as his running mate in 2020 on that basis, so he is likely to do the same with this appointment. If he does, a couple of possibilities are Judge Ketanji Brown Jackson of the DC Court of Appeal, and Judge Leondra Kruger of the California Supreme Court.
What we won’t have is a real selection process. Most likely, Biden and his advisors have already decided who the nominee will be because it is very likely that they negotiated with Justice Breyer for him to retire in exchange for appointing a person of his choice. If that’s the case, then Judge Jackson is likely to be the nominee because she meets Biden’s identity politics criteria and also is a former clerk of Justice Breyer. The selection process that will play out publicly will be a show to hide the fact that a deal was made with Breyer behind the scenes.
Once the nominee is announced, it will go to the Senate for confirmation. A Supreme Court nomination cannot be filibustered and can be confirmed by a simple majority vote. In the evenly divided 50-50 Senate, getting the nominee confirmed will be very challenging.
Throughout most of American history, senators of both parties almost uniformly held to the principle that the president is entitled to make appointments of his choice, regardless of their judicial philosophy, as long as they’re qualified. That started to change about 50 years ago as the Supreme Court became more and more activist in making policy rather than interpreting the Constitution and statues as written. Over the past half-century, senators have understood that Supreme Court justice are now unaccountable legislators, which has made judicial philosophy dramatically more important. So, it is now the common practice of senators of both sides to vote on a nominee based on their judicial philosophy with little or no deference to presidential prerogative.
But there are a few senators who still adhere to the old principle of deferring to presidential prerogative. Pay close attention to Republican Senators Lindsey Graham, Susan Collins, Lisa Murkowski, and Mitt Romney, any of whom could vote with the Democrats to confirm Biden’s nominee regardless of judicial philosophy in deference to the president. Furthermore, if the nominee is black, the Democrats will almost certainly smear the Republicans as racist for opposing her, and many Republican senators are spineless enough to be cowered by such attacks. In the evenly divided Senate, if even one Republican breaks ranks the nominee will very likely be confirmed. If the Republicans are to stop the nominee from being seated, it will be up to Senate Republican Leader Mitch McConnell to keep all of them united.
Even if McConnell keeps the Republicans united, the Democrats could approve the nomination without any Republican votes – but only if all 50 Democrats vote for confirmation. In that situation, the spotlight will once again be on Democrat Senator Joe Manchin, who has already famously killed both Biden’s reckless “Build Back Better” socialist spending bill and the Democrats’ bill to give them partisan control over all future elections in the guise of “voting rights.”
Manchin represents West Virginia, a state that voted for Republican Donald Trump over Democrat Joe Biden by 40 points in 2020. He knows that voting to confirm a left-wing activist for the Supreme Court would be the end of his political career. That’s why Biden’s effort to appease the Marxist wing of his party could once again be thwarted by the Senator from West Virginia.
All of this becomes even more challenging for the Democrats given that this entire process will be playing out in the middle of a congressional election year in which Republicans are expected to win landslide majorities in both houses of Congress. Democrat senators in purple or red states who are up for reelection this year in this political climate will be hard pressed to vote for a left-wing activist to be on the Supreme Court. Keep an eye on Democrat Senators Mark Kelly (AZ), Raphael Warnock (GA), Catherine Cortez Mastro (NV), and Maggie Hassan (NH).
The bottom line is that despite being in the (slight) minority in the Senate, the Republicans have a very good chance to defeat this nomination. Then when the Republicans regain the majority in the Senate after this year’s election – which is very likely – they can force Biden to either submit a reasonably moderate nominee or simply keep the seat vacant until after the 2024 presidential election.