Recent confirmation battles leave Senate Democrats with procedural and political advantages that will allow them to quickly fill a Supreme Court vacancy left with the retirement of Justice Stephen G. Breyer — even though they hold the narrowest of majorities.
Republicans got rid of the Senate filibuster rules for Supreme Court nominees in 2017, which means Democrats don’t need any help from any Republicans now to confirm a pick from President Joe Biden. So while it used to take 60 votes to overcome a filibuster from the minority party before the confirmation process for Justice Neil M. Gorsuch, now it takes just 50 to do so.
No members of the Democratic caucus, 48 Democrats and two independents, have voted against any of Biden’s judicial nominees on the Senate floor. While Democratic Sens. Joe Manchin III of West Virginia and Kyrsten Sinema of Arizona have stood in the way of their party’s pushes on voting rights and economic stimulus legislation, the high court confirmation has its own political orbit.
Manchin put out a brief statement that said he takes the Senate’s advice and consent role on nominations “very seriously” and looks forward to meeting with a nominee and evaluating the qualifications. Sinema had not put out a statement at the time of publication.
A pick from Biden could also garner support from some moderate Republicans and those willing to defer to a president’s pick for the high court. But even a 50-50 vote means Vice President Kamala Harris would be able to break the tie.
“If all Democrats hang together — which I expect they will — they have the power to replace Justice Breyer in 2022 without one Republican vote in support,” South Carolina Republican Sen. Lindsey Graham, a former Judiciary Committee chairman, said. “Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court.”
Graham knows that well, since he presided over speedy confirmation hearings for Justice Amy Coney Barrett in a race to confirm her in October 2020 just over a month after the death of Justice Ruth Bader Ginsberg, and weeks before the November presidential election.
That confirmation fight, which Democrats decried as running over Senate traditions, essentially insulates this process from prior debates over whether high court vacancies should be held open ahead of elections, and reinforced the speed with which Democrats could move from nomination to confirmation vote now.
Judiciary Chairman Richard J. Durbin said he would move Biden’s nominee “expeditiously” through the committee. And a source familiar with planning from Majority Leader Charles E. Schumer of New York said he was looking at a similar one-month timeline to that of Barrett’s confirmation.
Schumer, in a news release, said the Senate would consider a nominee “with all deliberate speed,” which may count as the first gaffe of the vacancy in this context. That wording in legal circles is best known for a phrase in the landmark Supreme Court decision on school desegregation in Brown v. Board of Education that did not instill in Southern states an urgency to integrate schools.
The timing of Breyer’s retirement, expected at the end of the term at the end of June, means that Democrats will have plenty of time for a confirmation before the end of the year, when they could lose control of the Senate in midterm elections.
If they wanted to, Democrats likely could even hold the confirmation hearing and vote prior to Breyer leaving the bench. Republicans did that in 2020 for a vacancy on the federal appeals court in Washington.
The executive director of Demand Justice, a liberal advocacy group whose campaign for Breyer to retire included a billboard truck that in part said “Breyer, retire,” called it “a relief” that Biden will get the opportunity to choose the next justice while the Senate is in Democratic hands.
“Justice Breyer’s retirement is coming not a moment too soon, but now we must make sure our party remains united in support of confirming his successor,” Brian Fallon said in a news release.
The background and qualifications of the nominee will still matter, but Biden’s potential selection of a Black woman and the current ideological balance of the court could reduce the heat on the confirmation process this time.
Biden’s selection will not alter the 6-3 conservative advantage on the Supreme Court after former President Donald Trump’s three appointments in four years. And opposing an appointment that would break a racial barrier might prove more politically tricky for Republicans.
Sen. Patty Murray of Washington, part of Democratic Senate leadership, was among the first to issue a statement about the Breyer news and focused on how she backed Biden’s pledge to nominate a Black woman.
“The Court should reflect the diversity of our country, and it is unacceptable that we have never in our nation’s history had a Black woman sit on the Supreme Court of the United States — I want to change that,” Murray said.
But a confirmation process likely will still be a partisan slugfest, as the Supreme Court has become central to some of the most contentious policy debates in the country, including abortion rights, gun rights, vaccine mandates, campaign finance restrictions, religious freedom, LGBT rights and more.
The high court is currently deciding cases on whether to let states curb abortion access and whether to expand Second Amendment rights on firearms outside the home for the first time — two issues that strongly align with partisan interests. Those decisions are expected to come down later in the term, likely in June, at a time when midterm campaigns are heating up.
Missouri Republican Sen. Josh Hawley, a Judiciary Committee member and possibly a 2024 presidential candidate, hinted at potential opposition when he called this a moment of truth for Biden.
“Will this deeply unpopular & divisive president finally reject the radical elements of his party and nominate someone who loves America and believes in the Constitution?” Hawley tweeted Wednesday. “Or will he continue to tear apart this country w/ a woke activist?”
And Texas Republican Sen. John Cornyn, also a member of the Judiciary Committee, said in a news release that Biden would get “immense pressure from the radical left to replace Justice Breyer with a partisan who will legislate from the bench.”
Cornyn pointed to the contentious confirmation of Justice Brett M. Kavanaugh, who vigorously denied an allegation of sexual misconduct decades ago before he was confirmed in a 50-48 vote in 2018. Cornyn said Biden’s nominee “will be treated fairly and with the dignity and respect someone of his or her caliber deserves, something not afforded to Justice Kavanaugh and other Republican nominees in the past.”
Senate Minority Leader Mitch McConnell, whose moves as majority leader paved the way for the confirmations of Gorsuch, Kavanaugh and Barrett, did little to indicate how the GOP minority will comport itself.
“I’m afraid to put the cart before the horse,” McConnell said at a news conference Wednesday in Kentucky, citing the lack of an official announcement from Breyer. “When he does that I’ll have a response to his long and distinguished career.” When asked if Republicans intend to block the nominee, McConnell said: “We don’t even know who the nominee is yet.”
Dark money political groups have spent millions of dollars on Supreme Court confirmation hearings for the past few vacancies. And the vacancy comes at a time when there are proposals from liberal advocates and some Democratic members of Congress to overhaul the Supreme Court with changes such as term limits for justices or expanding the number of justices.
Carrie Severino, a former clerk for Justice Clarence Thomas who runs the Judicial Crisis Network, which spent millions backing Trump’s high court picks, said Wednesday that the “Left bullied Justice Breyer into retirement and now it will demand a justice who rubber stamps its liberal political agenda.”
Fallon said that Demand Justice expects bad-faith attacks from Republicans no matter who the nominee is. “We are prepared to counter the tired attacks Republicans always trot out against women of color who have stood up for equal justice,” Fallon said. “We are confident Biden’s nominee will be installed before the October term.”
Rhode Island Sen. Sheldon Whitehouse, a Judiciary Committee member who has railed against anonymous money around Supreme Court nominations for years, said right-wing donors will “deploy massive dark-money firepower” to defeat any Breyer replacement.
“I hope the White House and our allies prepare for the fight ahead,” Whitehouse said. “We cannot allow right-wing donor interests to tighten their grip on the Court any further.”
Niels Lesniewski, Chris Cioffi and Megan Mineiro contributed to this report.