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Wednesday, May 22, 2024 | Back issues
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Sharply divided Senate awaits Biden’s Supreme Court nominee

With Justice Stephen Breyer set to retire this summer, his successor faces hearings before a 50-50 Senate.

WASHINGTON (CN) — The White House is keeping quiet about who will be put forward to fill the seat of Justice Stephen Breyer upon his planned retirement from the Supreme Court, but Capitol Hill is already digging in for a partisan fight.

"I think I would bet the farm and say that it's going to be a 50-50 vote in the committee," Carlos Algara, associate professor of political science at Claremont Graduate University, said in an interview after news broke Wednesday that Breyer will exit the country's highest court at the end of this term, paving the way for President Joe Biden's first nominee to the court and, if he fulfills a long-standing campaign promise, the first Black woman to serve as a Supreme Court justice.

Any nominee must first make it out of the Senate Judiciary Committee before she is given a full vote on the Senate floor. Certain to exacerbate political tensions, however, is the deadlock that has an equal number of Republicans and Democrats both bodies.

If the committee ties over whether to advance the nomination, a process Republicans could drag out by boycotting meetings, it will force an extra vote in the Senate on whether to discharge the nominee.

Following the raucous and politically fraught nomination hearings of Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, whether Biden's nominee will face the political firestorms that enveloped her predecessors remains a question.

Josh Chafetz, professor at Georgetown Law School, said based off the likely shortlist of nominees and the fact that the nominee won't shift the balance of the court, this confirmation may be cooler, "unless we find out something about them we don't know."

"It'll be partisan," Chafetz said. "There'll certainly be a lot of senators using it as an opportunity to make an argument either geared at the midterms or, in some cases geared at 2024 presidential sort of positioning, but I also think there are definitely some Republican senators who are going to find it politically advantageous not to be seen as too confrontational towards a Black woman."

Emmitt Riley, associate professor of political science and Africana studies at DePauw University, warned not to underestimate the scrutiny Biden's nominee could face simply for being a Black woman.

"We have seen historic firsts in Black politics, whether it's the first Black president, whether it's the first Black secretary of state, whether it's the first Black attorney general, receive unprecedented scrutiny, and in a way that differs from whites who occupied those offices," Riley said. "So, while I think that Democrats are likely to confirm this justice, it will be interesting to see in the nomination hearing the degree to which Republicans attempt to pick apart the opinions that these particular jurists have issued, cases that they've heard and of that nature. In particular, at a time where we're talking about the banning of critical race theory, I suspect that Republicans will certainly be looking for ammunition to see where these candidates stand on those particular issues and will likely attempt to make those issues in the confirmation hearing."

It will be the first time the Senate is perfectly divided when presented with a Supreme Court justice pick, a factor that puts pressure on Democrats to forge party unity and puts the spotlight on the party's most consistent defectors, Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona.

Manchin and Sinema have both cited policy concerns in recent months when splitting from fellow Democrats on recent legislation that represented key parts of Biden's agenda but might roil more conservative constituents back home.

But neither senator has voted against any of Biden's nominees to the federal courts so far. Manchin meanwhile tends to confirm Supreme Court nominees put forward by either party but voted against the confirmation of Justice Amy Coney Barrett due to the proximity of her nomination to the last presidential election.

"Up to this point, Senator Manchin has a history and public remarks of being deferential to presidents for their Supreme Court nominees. He doesn't strike me as the kind of Senator that would torpedo his own party's Supreme Court nomination," Algara said.

Chafetz said Democrats are likely to unite behind Biden's pick for the court.

"The White House knows who the pivotal senators are. They're probably going to reach out to them before they sort of finalize who the nominee is," Chafetz said.

The Senate did away with the filibuster for Supreme Court nominees in 2017 to confirm Justice Neil Gorsuch to the highest court, meaning Democrats need just 51 votes to confirm a new justice.

Vice President Kamala Harris can cast the deciding vote in the event of a tie and, depending on the nominee, some Republicans may even break ranks to support Biden's pick for the Court.

Senator Lindsey Graham and Senator Susan Collins, both Republicans, voted in favor of confirming Justice Elena Kagan and Justice Sonia Sotomayor, the last two nominees appointed by Democratic presidents.

"I think there's a decent chance that at least a few Republicans also come along on this, in part because I think some of them do have a sort of genuine sense that there ought to be a certain amount of deference to the President on nominations," Chafetz said.

While confirming a Supreme Court justice, and the country's first Black woman justice, is historic and a win for Democrats who were scorned by the failed 2016 nomination of Merrick Garland, whether it will provide the party with political momentum headed into a tough midterm fight remains to be seen.

"It's sort of one of the truisms in contemporary politics that African-Americans and, in particular Black women are sort of the backbone of the Democratic Party. So, I think it could be motivating at the margins for some important parts of the Democratic electorate," Chafetz said. "I think it's unlikely to be hugely motivating, in part because judicial nominations are rarely hugely motivating, and in part because, you know, this wouldn't do anything to change the sort of partisan composition of the court as a whole."

Riley was similarly cautious. "It is likely to provide some level of support, but I'm not so sure it's going to generate the momentum that Democrats will need to turn out their base," Riley said.

Senate Majority Leader Chuck Schumer is pushing for a quick confirmation process for whomever the nominee is, announcing Wednesday that Biden's nominee "will be considered and confirmed by the full United States Senate with all deliberate speed."

Republicans are already firing up their base in response.

"I predict that Chuck Schumer and whoever is running the White House will force all Democrats to obey and walk the plank in support of a radical liberal with extremist views," Florida Senator Rick Scott, who is also chairman of the National Republican Senatorial Committee, said in a statement.

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