We reported that Stephen Breyer, a liberal Supreme Court Justice, made it official by pledging to retire. He did this in company with Joe Biden at the White House Thursday afternoon.
During his comments, Joe Biden praised Breyer and reiterated his promise to nominate a black woman in Breyer’s place.
The news had been leaked by someone the day prior, apparently before Breyer. Breyer has been under pressure from the left to leave while Biden remains in office so that he can appoint a candidate. The timing of this is another indication that they think they’re going to get wiped in November in the midterms. It is clear that they will have a harder time getting the nomination passed the Senate if Democrats lose more seats. Right now, it’s a 50-50 Senate.
Senate Minority Leader Mitch McConnell (R-KY) pointed out that the Senate was even and that Biden didn’t have the mandate to go radical, warning Biden not to pick a far-leftist as a replacement.
“Looking ahead — the American people elected a Senate that is evenly split at 50-50. To the degree that President Biden received a mandate, it was to govern from the middle, steward our institutions, and unite America,” McConnell continued. “The President must not outsource this important decision to the radical left. The American people deserve a nominee with demonstrated reverence for the written text of our laws and our Constitution.”
Biden, however has always governed on the left and been in the pockets of radical left. Expect that Biden’s nominee will be someone who is left-leaning like Breyer.
A radical activist could mean that they lose either Sen. Kyrsten (D-AZ), or Sen. Joe Manchin, (D-WV). While Manchin and Sinema have previously gone along with Biden appointees, Sinema made clear that she wasn’t just going to be a rubber stamp.
“As with all nominees and as I did during the 2020 Supreme Court nomination, I look forward to fulfilling my constitutional duty to provide advice and consent by thoughtfully examining the next nominee based on three criteria: whether the nominee is professionally qualified, believes in the role of an independent judiciary, and can be trusted to faithfully interpret and uphold the rule of law,” Sinema released in a statement.
McConnell may not vote for the nominee if McConnell considers him too extreme left. The Committee is currently split, so Democrats still would need one Republican to bring the nominee to the Floor.
There is a way around that, even if it’s not voted out of Committee, but there’s a problem there too.
A majority of the Senate—51 votes, typically—can then put debate about the issue on the calendar for the next day. But that’s the last easy part. When the potential pick comes to the floor again, it’s not as a nomination. At that point, it’s a motion to discharge, a cloture motion that requires 60 votes. This means that 10 Republicans will need to revive the nomination of an individual who was blocked by the Judiciary Committee.
It would then go back to needing 60 votes, and they’re not going to get 10 Republicans.
This promises to be a fascinating fight, regardless of who is the nominee. It is now up to Biden to decide how radical he will go. Would he risk fighting right before the midterms? He’s already shown that he’s a creature of the left and doesn’t have a lot of judgment in that area, so I wouldn’t put it past him.
But there’s also another aspect of this resignation from Breyer. Breyer said he would continue in his position until his successor is nominated “and confirmed.”
“I intend this decision to take effect when the Court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed,” Breyer told Biden in his official letter.
Breyer may decide that if McConnell blocks the nomination Breyer will not be able to leave at term’s end, as he intended.
You can expect a lot more gamesmanship along the way.
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