Supreme Court confirmation battles can be really ugly and contentious, but the process of replacing Justice Stephen Breyer should be a welcome diversion for Senate Democrats — so long as they move quickly.
Senate Democrats have been dysfunctional lately, unable to coalesce around voting rights or Build Back Better, but it will probably be much easier for them to agree on Joe Biden’s forthcoming nominee.
The confirmation gives Senate Majority Leader Chuck Schumer (D-N.Y.) a chance to “avoid the Dem-on-Dem violence that was rapidly escalating in his caucus and to focus on something that will hopefully unite the caucus,” said Jim Manley, a Democratic strategist and veteran of Capitol Hill.
Sens. Kyrsten Sinema (D-Ariz.) and Joe Manchin (D-W.Va.) have withheld their support from big policy bills lately, but they’ve reliably supported all of Biden’s nominees to lower courts so far. And Manchin said Thursday that he wouldn’t have any problem with a nominee whose political views are much more liberal than his own, so long as the person could get along with the other justices.
But Democrats might want to hurry. Since they control just 50 seats in the 100-seat chamber, if any one of their members suffered a health problem and couldn’t vote, they could be unable to muster a majority at a crucial moment.
It’s happened before — the death of Sen. Ted Kennedy (D-Mass.) in 2009, and the subsequent election of Republican Scott Brown to replace him, left Democrats without the 60 votes they needed to pass the Affordable Care Act in 2010.
“Time is not our friend,” said Manley, who worked at the time as a senior adviser to then-Senate Majority Leader Harry Reid (D-Nev.), who wound up having to navigate a complicated “budget reconciliation” process to avoid a Republican filibuster.
But Sen. Susan Collins (R-Maine), a potential GOP vote for Biden’s Supreme Court nominee, urged Democrats to tap the brakes in order to allow senators time to do their due diligence.
“This time there is no need for any rush. We can take our time, have hearings, go through the process,” Collins said this week at an event in Maine. “It is a lifetime appointment after all.”
Collins has typically voted to confirm Supreme Court nominees regardless of the party of the president who has nominated them.
Republicans moved with lighting-quick speed to get their Supreme Court nominees confirmed in recent years, doing so much quicker than average. It took them only 30 days to confirm Amy Coney Barrett in 2020, for example. Former President Donald Trump announced her nomination just a week after the death of former Supreme Court Justice Ruth Bader Ginsburg. (Collins voted against Barrett.)
Even if Democrats hurry, Republicans aren’t totally powerless. They could throw up procedural roadblocks in an effort to slow the process down, including potentially boycotting a vote on Biden’s nominee in the Senate Judiciary Committee.
Under current Senate rules, a majority of the committee must be present in order to vote to send the nomination to the floor. The committee is evenly divided with 11 Democrats and 11 Republicans because of the 50-50 split in the Senate. If no GOP senators show up for the committee vote, Democrats could vote to report the nomination out anyway, ignoring the quorum rule. Republicans did a similar thing when Democrats boycotted the committee vote for Supreme Court Justice Amy Coney Barrett’s nomination in 2020.
It’s not clear whether Republicans will choose to go this route for a nomination that isn’t expected to change the ideological balance of the court. Boycotting a committee vote on the nomination of the first Black woman to the Supreme Court would also look bad and could backfire.
Ultimately, if all 50 Democrats support proceeding to a full Senate vote on the nomination, including potentially changing the quorum rule, there isn’t anything Republicans can do to stop it, as Sen. Lindsey Graham (R-S.C.) seemed to acknowledge in a statement following Breyer’s announcement he was stepping down.
“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,” Graham said. “Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court.”