For some time now, Democrats have been publicly and privately urging Supreme Court Justice Stephen Breyer to retire. The 83-year-old justice’s announcement this week to bow to their wishes recognizes not just his age but the political reality that if he waited much longer, the seat could wind up in conservative hands, further tilting rightward the ideological balance on the court.
Democrats have probably less than a year to be able to smoothly get their desired nominee confirmed. Assuming that President Biden doesn’t choose someone so far to the left that he loses a couple of key moderate Democrats in the Senate, his choice should get through.
The Republicans might fuss and try to stonewall, but as long as the Democrats vote in unison, the pending Biden nomination would be hard to derail. As the Republicans showed in the waning days of the Trump administration, when they held a slim majority in the Senate, a Supreme Court nomination can be quickly approved when the clock is ticking. Amy Coney Barrett, the final of three conservative nominees to the high court from Donald Trump, was confirmed in just 30 days.
A year from now, the political landscape might not be so favorable for the Democrats. Barring some dramatic turnaround, they are expected to lose their Senate majority, which currently depends on a tie-breaking vote from Vice President Kamala Harris. Although Biden will have the power to try to fill judicial vacancies through at least 2024, it gets tougher to do so when the opposition party controls the Senate. Barack Obama learned that in his final term, when his nomination of Merrick Garland, now the U.S. attorney general, was blocked by the Republican majority in the Senate, which successfully gambled that Obama would be succeeded by a Republican in the White House.
That gamble brought Neil Gorsuch to the Supreme Court and began the string of GOP confirmation victories that has produced a 6-3 conservative majority.
Even if the GOP could see a way to stop Biden’s nominee this year, it would have to weigh whether it should try. The president has promised to keep a campaign pledge to nominate the first Black woman to sit on the Supreme Court. Republicans have had a longstanding difficulty luring Black voters, and their grip on suburban women has been slipping. They would only make things worse with both constituencies in the months leading up to the November elections if they come across as obstructionists standing in the way of the nation achieving such a historical first.
Being tagged as a racist, misogynistic party as the result of a nasty confirmation battle over a Black female nominee could snatch defeat from the jaws of victory for the GOP. Given that possibility, Republicans may decide that a 6-3 majority on the court is good enough.
