The White House is about to launch a blitzkrieg bid to replace Supreme Court Justice Stephen Breyer, who is expected to leave a vacant seat on the bench just months before a midterm election that could tip the balance of power. powers in the Senate.
Joe Biden’s administration faces pressure to act quickly to ensure it doesn’t lose progressive seats on America’s top court, which is split 6-3 between conservative and liberal justices.
“This should be a rocket ship case for the Biden administration,” said Barbara Perry, Supreme Court Justice and University of Virginia Presidential Scholar, using a judicial term to quickly hear cases. “They should have all their ducks in a row, they should be ready to go to make the announcement . . . and get it done quickly before we go into the silly mid-term season.
Once a nominee is nominated, they will meet with senators before a hearing before the Senate Judiciary Committee. Once the panel votes to advance the nominee, there will be a vote in the full Senate, requiring only a simple majority to pass.
With the midterm elections 10 months away, the schedule is still tight for the White House. Court watchers argue that the political jostling ahead of the polls could shift allegiance, exacerbating the unpredictability of one of the most politically charged events in Congress when the Senate split is already so tight.
“It is absolutely essential that someone be appointed as soon as the resignation permits,” said Laurence Tribe, professor emeritus at Harvard Law School.
Breyer, 83, said he would step down at the end of the court’s current term, which usually ends in late June or early July, if his successor has been named and confirmed. Biden confirmed Thursday that he would nominate the first black woman to the Supreme Court and said he would name his pick by the end of February.
How quickly the confirmation process unfolds will largely depend on the Democratic leadership of the Senate, including Majority Leader Chuck Schumer, though he will have to maintain a delicate balance to keep the process from derailing.
With the Senate so tightly divided — 50-50, with Vice President Kamala Harris able to vote for the tiebreaker — Democratic leaders will be banking on the support of their entire caucus to successfully confirm a candidate Biden.
At the same time, they’ll have their eye on the midterms, when a handful of races will likely determine which party holds control of the upper house of Congress for the next two years.
Top Democrats on Capitol Hill have already pledged to move quickly to confirm any Biden nominee.
Schumer told reporters Wednesday that senators “want to get this done as soon as possible.” Dick Durbin, the Democratic senator from Illinois who chairs the Senate Judiciary Committee, said he “looks[ed] looking forward to getting the president’s nominee through the committee quickly.
But some Republican lawmakers signaled they were less open to a quick confirmation process.
Lindsey Graham, a Republican senator from South Carolina and former chair of the Judiciary Committee, said Democrats had the “power” to replace Breyer “without a single Republican vote in favor.”
Tribe said the timing of Breyer’s departure could complicate Biden’s efforts to install his preferred nominee, giving Mitch McConnell, the Senate’s top Republican, who has stalled Merrick Garland’s confirmation hearings in the past year of the presidency of Barack Obama, the possibility of making “noises about being too late to confirm a successor” before the midterms.
McConnell on Thursday urged Biden to choose “a candidate with demonstrated respect for the written text of our laws and our Constitution.”
“[T]he American people elected a Senate evenly divided 50-50. To the extent President Biden was given a mandate, it was to govern from the middle, manage our institutions and unite America,” he said in a statement. “The president must not outsource this important decision to the radical left.”
All eyes will be on Joe Manchin, the Democratic senator from West Virginia who has often proven to be a thorn in the side of the Biden administration, most recently in his opposition to the ambitious Build Back Better social spending program. Of the president.
Manchin, who takes a more conservative stance than many of his Democratic counterparts on social issues such as guns and abortion, broke with his party in 2018 to support Donald Trump’s Supreme Court nomination of Brett Kavanaugh. .
Manchin said Wednesday he takes his constitutional responsibility “very seriously” and looks forward to evaluating Biden’s nominee.
Democrats, however, could bolster support from a handful of moderate Republican senators, namely Susan Collins of Maine, who is more liberal on abortion issues than many of her colleagues and who has been reluctant to back Kavanaugh’s nomination. but then voted in favor of its confirmation. However, she broke with her party by opposing the rapid confirmation of Amy Coney Barrett.
Collins told reporters in Maine on Wednesday that she thought Barrett’s confirmation process – which took just a month from her nomination by Donald Trump – was “too compressed” and urged her colleagues to take their time. “It’s a lifetime date, after all,” she said.
Another possible Republican support vote could come from Lisa Murkowski, the Alaskan senator who frequently crosses the political aisle to vote with Democrats and last year joined Collins and Graham in backing Biden’s nomination of Ketanji Brown. Jackson, now considered a frontrunner for the nomination to replace Breyer, on the District of Columbia Court of Appeals.
But many Washington insiders say Murkowski – who did not immediately comment on the Breyer news – may be reluctant to back a Democratic candidate as she faces a tough primary challenge from Republican Kelly Tshibaka. endorsed by Trump later this year. Murkowski voted against two of Obama’s Supreme Court nominees, Sonia Sotomayor and Elena Kagan, in 2009 and 2010, respectively.
Perry said: “Someone like that might get a break if [the confirmation of Breyer’s successor] approximate [to midterms]”.