Breyer retirement latest complication for Biden spending bill

Supreme Court Justice Stephen Breyer’s plans to retire have thrown another curveball into the winding efforts to get the cornerstone of President Biden’s agenda passed in what could be the final months Democrats have full control of Congress.

Appointing Breyer’s replacement to the court is an undeniable win for Biden and the Democrats, some of whom had pleaded for the 83-year-old justice to step down and make way for a younger judge to cement the liberal wing of the bench.

But the timing of the announcement, nine months before the midterm elections, could make it more difficult for Biden and Democratic leaders to negotiate and get his signature climate and social spending proposal, Build Back Better, passed and signed into law.

“At some point, that nomination process is going to consume all of the oxygen on Capitol Hill in the Senate,” said Jim Manley, a former aide to the late Sen. Harry Reid (D-Nev.). “It doesn’t mean Build Back Better is done, but it’s just another problem that has to be dealt with.”

Biden said he plans to announce his nominee by the end of February, and Democratic aides indicated that Senate Majority Leader Charles Schumer (D-N.Y.) hopes to follow a confirmation timeline close to that of Supreme Court Justice Amy Coney Barrett, who was confirmed 30 days after she was nominated. 

A nomination will be followed by confirmation hearings before the Senate Judiciary Committee and eventually a confirmation vote on the Senate floor. While nothing expressly prevents the White House from trying to get the spending package finished before the Supreme Court vote, it will be complicated to do so once Biden unveils his nominee, given the attention the confirmation process will soak up. 

Democrats desperately want to see a version of Build Back Better passed while they still hold control of both chambers of Congress and the White House. But the bill has run into hurdle after hurdle in the Senate once it passed the House. After months of talks, Sen. Joe Manchin (D-W.Va.) in December said he could not support the legislation and said last week negotiations would be “starting from scratch.”

“We have to walk and chew gum at the same time here in the White House,” White House press secretary Jen Psaki told reporters Wednesday when asked whether there were concerns that a Supreme Court nomination process would complicate other legislative priorities, like Build Back Better. “We are entirely capable of doing more than one thing at once.”  

One Democratic strategist close to the White House argued it was too soon to say for sure if Build Back Better was directly imperiled by the Supreme Court opening. They suggested the confirmation process could provide a win for Biden and Democrats and allow for a cooling off period before returning to negotiations with tensions lowered. 

But the strategist acknowledged that getting the Build Back Better bill passed in time for voters to see tangible benefits before the midterms would become more difficult given the confirmation process, and other measures with bipartisan support could push it farther to the backburner. 

“Time is not the friend of Build Back Better,” said Manley. “The longer this stretches out, the more difficult it’s going to become.” 

The White House has not laid out a specific timeline on which it wants to pass the climate and social spending package. Some progressives this week pressed Biden and Senate Democrats to ensure its passage before the State of the Union address on March 1 — an ambitious and unlikely timetable. A revised measure would need to pass both the House and Senate.  

In both the case of the climate and social spending package, which the Senate intends to pass using budget reconciliation, and the Supreme Court nomination, Biden needs to have the backing of all 50 Democratic senators. It is possible that a Republican senator could vote for Biden’s forthcoming nominee, but the odds of that happening diminish in the throes of a midterm election year given the high partisan tensions in Washington. The Democratic caucus has stayed united on Biden’s previous judicial nominees.  

The selection process for a nominee is expected to move quickly, and the White House is devoting serious resources to it. Among those involved in the process are Vice President Harris, White House chief of staff Ron Klain, White House counsel Dana Remus, legislative affairs director Louisa Terrell, senior adviser Cedric Richmond and Paige Herwig, who works in the White House counsel’s office on judicial nominations.  

Terrell, along with National Economic Council Director Brian Deese and White House counselor Steve Ricchetti, have been intimately involved in past negotiations surrounding the Build Back Better package. 

Meanwhile, the White House has been quiet about engagements with Manchin on the climate and social spending package. Reached on Friday, a Manchin spokesman said there was “nothing new to add” to Manchin’s remarks last week in which he indicated negotiations with the White House had not yet resumed.  

The renewed push for Build Back Better is just one of a handful of priorities that the White House and Democrats in Congress are currently juggling, in addition to the impending Supreme Court confirmation process.

Another government funding bill needs to be passed before Feb. 18. The House also recently unveiled its version of a China competitiveness bill that already passed the Senate. 

Biden has twice in recent speeches leaned on Congress to pass a China competitiveness bill, though the White House has declined to weigh in on whether aides want to see it passed before a revised Build Back Better bill.

“The president would like to sign it as soon as possible,” Psaki said this past week. “But beyond that, I’m not going to get into an order of events.” 

And Manchin is one of a handful of bipartisan senators who have discussed potential reforms to the Electoral Count Act, something the White House has said it would support after two broader voting rights bills were blocked in the Senate. 

Biden conceded at a press conference this month to breaking up the Build Back Better package, acknowledging that some proposals won’t survive and signaling his openness to exploring what a pared-down bill might look like. 

“I’ve been engaged a long time in public policy,” Biden said then, “And I don’t know many things that have been done in one fell swoop.”

In a bid to maintain some momentum for the bill, Biden met with CEOs from major companies, including Ford, General Motors and Microsoft, to discuss the Build Back Better proposal on Wednesday, just after the news broke about Breyer’s retirement.

The meeting focused on the climate provisions, like electric vehicle tax credits, and child care provisions, like universal pre-K, two areas that Biden argued are essential for the economy and that the CEOs said were helpful to their businesses.

The meeting provided a bit of steam on the legislation, with top companies showing their support for passing key policy provisions of it even as it was buried by news of Breyer’s retirement.

“All politics is a billiards game of calculating the angles, reducing the unintended consequences, and making the shot,” said former Rep. Chris Carney (D-Pa.), a Biden ally. “Expect Senate Democrats and Republicans to calculate how a Supreme Court nomination process affects the rest of Biden’s BBB agenda.” 

Alex Gangitano contributed.