Word of Justice Stephen Breyer’s retirement probably makes some Democrats nervous: Will this be another Merrick Garland?
Senate Judiciary Committee member Patrick Leahy, D-Vt., warned that Democrats could not afford a repeat of “the kind of obstruction of a President’s nominee that we saw with Merrick Garland.”
The Garland affair started with the death of Justice Antonin Scalia in February 2016, when President Barack Obama nominated Garland, a liberal judge and chief judge of the U.S. Court of Appeals for the D.C. Circuit, to fill the vacancy. (Garland is now the U.S. attorney general.) It appeared that Democrats would change the ideological composition of the court, easily. But what happened instead was a yearlong, bitter political battle that ended with a conservative taking the seat.
Then-Senate Majority Leader Mitch McConnell, R-Ky., orchestrated the ordeal by working the rules of the Senate to his advantage. The question now is whether, as minority leader, he can do it again. Hill insiders and observers say this time is different. The rules that let McConnell outfox Obama are not the same.
The Merrick Garland affair
The circumstances may have changed this time around, but they were always building to this point.
Within hours of Scalia’s death, McConnell vowed to block Garland’s nomination on the “principle” that the outgoing president shouldn’t be granted a lifetime appointment in an election year — something he could do under the filibuster rules at the time, which required a 60-vote threshold for confirming Supreme Court nominees. A successor should be chosen by the incoming president, he said: “Let the American people decide.”
No hearings were held to confirm Garland’s nomination, and Republican voters saw the vacancy as another reason to usher Donald Trump into office. When he won in November, Democrats had lost their chance completely.
After Trump was inaugurated, Republicans expanded the filibuster exemption to include Supreme Court nominees, meaning every Supreme Court nominee needs only a bare majority to sail through. This move allowed Trump to fill three Supreme Court vacancies: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, cementing conservatives’ grip on the high court.
McConnell’s claim of not filling seats in an election year was just playing politics: When Justice Ruth Bader Ginsburg died in the fall of 2020, he led Senate Republicans in a breakneck speed to confirm Trump’s choice to replace her. Barrett was confirmed less than two weeks before Election Day with a 52-vote majority.
The rule changes McConnell pushed through will help Democrats now.
Why this time is different
Senate Democrats are prepared to act fast this time around. A Senate aide told the Associated Press this week that the Senate plans to move forward with a confirmation process once Biden makes his nomination, regardless of when Breyer retires.
According to the AP, Democrats could begin committee hearings in the Senate even before Breyer steps down and not send Biden paperwork on the final confirmation vote until Breyer retires.
But even though Senate Republicans will not be able to use a supermajority filibuster maneuver against Biden’s nominee and the odds are looking good for Democrats, just one detractor from their 50 members could keep them from getting Biden’s nominee confirmed. Democrats in the evenly split 50-50 Senate will have to rely on Vice President Kamala Harris’ tie-breaking vote and make sure all senators in their party fall in line.
Senate Democrats will also need to make sure Sens. Kyrsten Sinema, D-Ariz., and Joe Manchin, D-W.Va. — who recently opposed weakening the Senate filibuster when it came to voting reforms and elections — vote with the rest of the party. However, they have both been reliable votes on most nominees, including lifetime judicial positions, Politico reported.
“I take my Constitutional responsibility to advise and consent on a nominee to the Supreme Court very seriously,” Manchin said in a statement Wednesday. “I look forward to meeting with and evaluating the qualifications of President Biden’s nominee to fill this Supreme Court vacancy.”
The AP reported Democrats are also hoping several Republican senators will vote with them, including Sens. Susan Collins of Maine, Lisa Murkowski of Alaska and Lindsey Graham of South Carolina, who all voted last year to confirm one of Biden’s potential nominees, Judge Ketanji Brown Jackson, when she was appointed to the D.C. Circuit Court.
But Graham has already indicated he likely will not support Biden’s nominee. “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.”
McConnell, meanwhile, has chosen to stay quiet about Breyer’s retirement.
Supreme Court nominations are increasingly partisan affairs
Supreme Court nominees used to be confirmed with nearly unanimous consensus, but over the last decade, nominations have become increasingly more partisan, starting with the nominations of liberal justices from Obama.
People familiar with Biden’s thinking told the AP that early talks about the president’s potential nominees included Jackson, U.S. District Judge J. Michelle Childs and California Supreme Court Justice Leondra Kruger.
Breyer’s retirement means Senate Democrats will not be altering the 6-3 conservative majority on the court. But they will have the chance to diversify the majority-white Supreme Court if Biden follows through on his campaign promise to nominate a Black female justice, which he said Thursday was a promise he would follow through on.
Biden also said he would announce his pick to the Supreme Court before the end of February and work with senators from both parties to weigh in on his choice.
“The person I will nominate will be someone with extraordinary qualifications, character, experience and integrity, and that person will be the first Black woman ever nominated to the United States Supreme Court,” Biden said on Thursday. “It’s long overdue in my view. I made that commitment during the campaign for president, and I will keep that commitment.”