Democrats may no longer be in disarray.
The announcement that Justice Stephen Breyer will retire from the Supreme Court is a rare bit of good news for a political party that has leapfrogged from failure to failure in recent months. They’ve been in a stalemate to pass Joe Biden’s signature social spending package and engaged in a quixotic effort to pass landmark voting-rights legislation, both because of opposition from moderates Joe Manchin and Kyrsten Sinema.
While it would be natural for some in the Democratic base to fear that those senators would similarly block a Supreme Court nominee, the senators have supported every single Biden judicial nominee so far and look ready to help the president fulfill his promise from the 2020 presidential primary of putting the first Black woman on the Court. “The president has stated and reiterated his commitment to nominating a Black woman to the Supreme Court and certainly stands by that,” White House press secretary Jen Psaki told reporters Wednesday.
The top contenders floated so far include Judge Ketanji Brown Jackson, who was confirmed just last year to the D.C. Circuit Court of Appeals by a 53-44 vote, as well as Leondra Kroger, a justice on the California Supreme Court. Jackson received the support of all 50 Democrats then and had an interview with Biden before being nominated for the vacancy, which was created when Judge Merrick Garland — whose Supreme Court nomination was famously blocked in 2016 — was appointed attorney general.
Whoever Biden picks, Senate Majority Leader Chuck Schumer wants the confirmation process to go fast. A source familiar with his thinking told Intelligencer that he envisions a similar timeline as Amy Coney Barrett’s nomination, which took only a month between Donald Trump nominating her to the Court following Ruth Bader Ginsburg’s death in 2020 and her confirmation by the Republican-held Senate. In a statement, Schumer pledged “President Biden’s nominee will receive a prompt hearing in the Senate Judiciary Committee and will be considered and confirmed by the full United States Senate with all deliberate speed.”
Manchin, the key 50th vote for any nominee, put out a suitably coy statement on Wednesday afternoon. “I take my Constitutional responsibility to advise and consent on a nominee to the Supreme Court very seriously,” he said. “ I look forward to meeting with and evaluating the qualifications of President Biden’s nominee to fill this Supreme Court vacancy.” A spokesperson for Sinema did not respond to a request for comment from Intelligencer.
Republicans are already broadcasting a certain air of resignation. On Twitter, Lindsey Graham wrote, “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. Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court.”
This is not to say that the nomination won’t be contested vigorously. One plugged-in Republican strategist told Intelligencer that the strategy would almost certainly be “full stonewall, no nominee, block at all costs, and put up a fight.” In particular, the strategist thought Republicans would try to “make it painful for Manchin, especially if the nominee is problematic on energy independence and bad for West Virginia.” Even then, it was conceded that the effort would probably fail. After all, Democrats had mounted all-out efforts to try to block the nominations of all three of Trump’s picks to the Supreme Court, and it was all to no avail.
The confirmation fight will also have extra resonance because it will take place at the same time the Supreme Court is hearing Dobbs v. Jackson’s Women’s Health, which could overturn 1973’s Roe v. Wade decision that established a constitutionally protected right to abortion. With a 6-3 conservative majority on the current Court, Roe is considered to be highly vulnerable, and it will likely lead to a heavier focus on abortion rights in this year’s midterms.
If Democrats manage to put their first justice on the Court in 12 years, it won’t change the lopsided conservative majority. And a successful nomination fight may not save Democrats from the accumulated political damage of the highest inflation in a generation and a halting return to normalcy after years of the pandemic, but it will give them an opportunity to change the subject from all of that and to fight on a front where the entire party — from the Squad to Sinema — is nearly certain to march in lockstep.
