Senate set for muted battle over Breyer successor

The retirement of liberal Justice Stephen Breyer sets up a battle in the Senate that is almost certain to result in the confirmation of President Biden’s pick to succeed him.

At the same time, there’s likely to be some drama along the way, and many eyes will be on centrist Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.), who have impeded Biden and frustrated fellow Senate Democrats by blocking key parts of the president’s agenda.

Senate Majority Leader Charles Schumer (D-N.Y.) plans to move as quickly as possible to confirm Breyer’s successor, according to a person familiar with his thinking, not leaving anything to chance in a 50-50 Senate.

“In the Senate, we want to be deliberate. We want to move quickly. We want to get this done as soon as possible,” Schumer told reporters in New York.

Manchin and Sinema have backed judicial nominees from Biden and seem unlikely to stand in the way of a Biden pick for the court — an appointment that will not change the balance of a body that now has six conservative justices.

Democrats feel confident Manchin and Sinema will stick with the rest of their caucus and support Biden’s nominee, as long as that person is considered well-qualified.

The historic nature of Biden’s expected pick will also be a factor.

Biden pledged on the campaign trail to appoint the first Black woman to the Supreme Court, and he is expected to make good on that promise.

District of Columbia Circuit Judge Ketanji Brown Jackson, who was confirmed last year to the nation’s second-highest court, is considered the leading candidate to replace Breyer.  

Manchin and Sinema joined the rest of their Democratic colleagues in backing her confirmation to the D.C. Circuit in a 53-44 in June. Three Republicans also voted to confirm: Sens. Susan Collins (Maine), Lisa Murkowski (Alaska) and Lindsey Graham (S.C.).

A person familiar with Schumer’s thinking said he is looking at a monthlong timeline for confirming Biden’s pick — the amount of time that Republicans used to confirm Justice Amy Coney Barrett just before the 2020 presidential election after liberal Justice Ruth Bader Ginsburg’s death.

That shift did affect the court’s balance and enraged Democrats after Senate Minority Leader Mitch McConnell (R-Ky.) in 2016 engineered a plan to block President Obama’s pick to succeed the late conservative justice Antonin Scalia.

Democratic strategists say moving quickly will be a way for Schumer to unify his caucus after recent divisive fights over filibuster reform and Biden’s Build Back Better Act.

Matt House, a Democratic strategist and former Schumer aide, said a quick confirmation process “would be a good, strong show of force for Democrats at a time when they need it, in contrast to some of the other struggles.”   

Rodell Mollineau, a Democratic strategist and former Senate leadership aide, predicted that Manchin and Sinema will stick with their Democratic colleagues.

“I know there has been a lot of frustration with Sens. Manchin and Sinema but I think we need to stop looking at this through the construct of, ‘Those two senators will be against everything and anything that Democrats want,’ because it’s simply not true,” he said. “We certainly had a rough patch on a few issues, but I can point to a lot more issues where both of them have been party loyalists on than I can on things they’ve been against.” 

Mollineau said Senate confirmation of Biden’s nominee doesn’t have to turn into World War III. 

“It would be a shame if there were a bunch of fireworks on this one. It’s not changing the outlook of the court,” he said.

Mollineau also said he doesn’t think the court fight will be much of an issue heading into the midterm elections — in contrast the high-profile fight over Justice Brett Kavanaugh that former Sens. Joe Donnelly (D-Ind.) and Claire McCaskill (D-Mo.) thought cost them their seats in the 2018 midterms.     

Biden’s Supreme Court shortlist also includes 7th Circuit Judge Candace Jackson-Akiwumi, 2nd Circuit Judge Eunice Lee, California Supreme Court Justice Leondra Kruger, Federal Circuit Judge Tiffany Cunningham, South Carolina District Judge J. Michelle Childs and Minnesota District Judge Wilhelmina Wright.

Brown Jackson, Jackson-Akiwumi, Lee and Cunningham all have the advantage of having been confirmed to their current positions in this Congress, and all 50 members of the Democratic caucus are already on the record supporting them as qualified nominees.  

Jackson-Akiwumi was confirmed to the 7th Circuit by a 53-47 vote in June and also had the support of Collins, Murkowski and Graham.  

Lee was confirmed more narrowly in August to the 2nd Circuit by a vote of 50-47. Collins and Murkowski voted against her nomination, while Graham missed the vote.  

The Senate voted 63-33 in July to confirm Cunningham to the federal circuit. 

Childs, who was confirmed to the South Carolina district court in 2010, was recently nominated by Biden to serve on the D.C. Circuit Court of Appeals, and the Senate Judiciary Committee is scheduled to hold a hearing on her nomination next week.  

She has the support of House Majority Whip James Clyburn (D-S.C.), who helped Biden win the 2020 South Carolina Democratic primary, a critical factor in him later winning the presidential nomination.  

Wright was confirmed to the Minnesota district court in January of 2016 and has had past support from Senate Rules Committee Chairwoman Amy Klobuchar (D-Minn.), a Schumer ally.  

Mike Plante, a West Virginia-based Democratic strategist, said Manchin’s philosophy has been to show deference to a president’s Supreme Court pick if the nominee is qualified, following the example set by longtime West Virginia Sen. Robert Byrd (D). 

“I think Joe will give the president his choice as long as he thinks it’s a qualified nominee,” he said.

“He had said to me years ago that he took Sen. Byrd’s approach on these confirmations that the president, regardless of their party, deserves to pick their team. As long as there was nothing extraordinary in [the nominee’s] background that he thought was disqualifying, then the president ought to get his or her choice on their nominees to federal offices and judicial appointees,” he added.   

Manchin voted for two of former President Trump’s Supreme Court nominees: Justice Neil Gorsuch in April of 2017 and Kavanaugh in October of 2018.  

Many Senate Republicans will put up a staunch resistance and plan to frame Biden’s pick as a far-left judge who would support what they say is his “radical” agenda.  

While Republicans know they have little chance of stopping the nominee — unless some kind of unexpected scandal emerges — they can use the fight to raise money and rev up their base ahead of the 2018 midterm elections.  

Brian Darling, a Republican strategist and former Senate aide, said, “It depends on the nominee, but I think you will see, no matter who gets nominated, Republicans dig in and fight.”

“Supreme Court picks are always a big fight, they’re very important to the conservative movement, and I have to imagine this is going to be a battle,” he added.