Senate Majority Leader Charles Schumer (D-N.Y.) said Wednesday that Democrats will take up a replacement for Supreme Court Justice Stephen Breyer, who is expected to retire at the end of the current term, with “all deliberate speed.”
“President Biden’s nominee will receive a prompt hearing in the Senate Judiciary Committee and will be considered and confirmed by the full United States Senate with all deliberate speed,” Schumer said in a statement.
Sen. Dick Durbin (D-Ill.), Schumer’s No. 2 and the Judiciary Committee chairman, added that he looked “forward to moving the President’s nominee expeditiously through the Committee.”
NBC News first reported on Wednesday that Breyer, 83, will retire at the end of the Supreme Court’s current term. The court typically recesses in late June or early July.
But Democrats could take up Breyer’s replacement before he formally steps down, which would allow his successor to be ready to go once Breyer formally retires several months from now.
Schumer is eyeing using a similar timeline to the one Republicans used to confirm Justice Amy Coney Barrett, a source familiar with his thinking confirmed to The Hill. It took 30 days from then-President Trump’s announcement of her nomination to a Senate confirmation vote.
“In the Senate, we want to be deliberate. We want to move quickly. We want to get this done as soon as possible,” Schumer said in New York on Wednesday afternoon.
The decision gives President Biden a chance to fill a seat on the Supreme Court ahead of the November midterm elections, with Republicans are feeling increasingly bullish about their chance of flipping the House and potentially the Senate.
Because the court is split 6-3 in favor of conservatives, Biden’s pick won’t change the balance of the court.
But it sets up a high-stakes fight in the Senate, where Democrats can confirm a Supreme Court pick without any GOP help if they can keep all 50 of their members united and have Vice President Harris break a tie.
Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) have caused high-profile headaches for their party on big legislative pushes such as the Build Back Better Act and an uphill effort to change the 60-vote legislative filibuster to pass voting rights.
But they’ve both been allies of Biden’s judicial nominees over the past year. All of Biden’s judicial nominees have received unified support from Senate Democrats, despite heavy GOP opposition, according to a Brookings Institution report released on Wednesday.
Democrats, led by then-Senate Majority Leader Harry Reid (D-Nev.), got rid of the 60-vote hurdle for lower court and executive nominees, allowing them to be confirmed with a simple majority. Senate Minority Leader Mitch McConnell (R-Ky.) nixed the same standard for Supreme Court nominees once Republicans won back the majority in 2017.
Republicans used the lower threshold to confirm three Supreme Court picks for then-President Trump, none of whom got 60 votes. The vacancy that will be created by Breyer’s expected retirement gives Democrats their first shot at taking advantage of the new rule on Supreme Court picks.
Sen. Lindsey Graham (R-S.C.), who chaired the Senate Judiciary Committee for part of Trump’s tenure, predicted that Democrats would likely unite to confirm Biden’s pick and Republicans would be powerless to stop them.
“As to his replacement: If all Democrats hang together – which I expect they will – they have the power to replace Justice Breyer in 2022 without one Republican vote in support,” Graham said in a statement, praising Breyer as a “scholar and a gentleman.”
“Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court,” Graham added.
Updated 4:05 p.m.