As Supreme Court Justice Stephen Breyer made his retirement official on Thursday, speculation immediately turned to who Joe Biden will name his replacement to become one of the court’s three liberal justices. All Biden has said so far publicly is that he remains committed to his promise to nominate a black woman for the job.
Traditionally, retiring justices have announced their intentions at the end of the court’s annual term in June. Breyer’s timing may indicate the pressure he has been receiving to make way for a Biden appointment of a younger liberal justice before this year’s crucial midterm elections might change the balance of power in the Senate.
McConnell (R-KY) has said that he will give whoever Biden nominates “a fair look.” However, he has also pointed out that an evenly divided Senate does not provide Biden a mandate to pick a radical far-left nominee. He said that America deserves a new justice who has “demonstrated reverence” for our Constitution and laws as they are written.
When he has been given a chance, Biden has governed from the far left and according to the instructions of the radical progressive wing of the Democratic Party. Moderate Sens. Kyrsten Sinema (D-AZ) and Joe Manchin (D-WV) have been a check on the most far-out initiatives so far, and they may stand in the way of a radical appointment to the high court.
Sinema issued a statement indicating that she does not plan on being a “rubber stamp” on a nomination. She said she plans to fulfill her duty by examining the nominee’s professional qualifications, belief in an independent judiciary, and trustworthiness to “faithfully interpret and uphold the rule of law.”
McConnell has some power to oppose a nominee by refusing to vote the candidate out of the Judiciary Committee. That committee currently has an even division, meaning the nominee will need at least one Republican vote from within the committee to advance in the usual process to a total Senate vote.
If that were to transpire, a majority of the full Senate could still bring the nomination up for a vote on its calendar. However, in that situation, the issue would not be on the calendar initially as a confirmation vote on the nomination. Instead, it would have to be listed as a “motion to discharge,” subject to the filibuster rule. It would require at least 60 votes to go forward, meaning at least 10 Republican senators would have to go along.
The bottom line is that Biden will need at least one Senate Republican to go along with his pick, and he cannot lose to either Sinema or Manchin. He will have to think cautiously about how radical he is to appease the hardcore progressives who have effectively gotten their way so far.