Democrats hope Biden's Supreme Court pick resonates in midterms as GOP eyes majority

·9 min read

The retirement of Supreme Court Justice Stephen Breyer delivered Democrats a glimmer of hope for their prospects in the 2022 midterm elections, when potential Republican victories could threaten Democratic majorities in Congress.

With President Joe Biden's agenda stalled and his approval numbers plummeting even among Democrats amid rising inflation, political observers have predicted the possibility of a Republican wave in November.

But with Breyer's retirement, Democrats in Congress are given the chance to confirm the nation's first Black woman to the high court before voters head to the polls. It has some liberals feeling optimistic that approving Biden's eventual nominee will boost the Democratic base and its donors.

It's not, however, expected to change much of the national reality for Biden and the Democrats, who have seen dozens of House retirements while midterms typically do not favor the party in power.

"I think it probably could net to the benefit of the Democrats if for no other reason than there's been an enthusiasm gap up until now that this could help level," Doug Sosnik, a former White House political director for President Bill Clinton, told USA TODAY.

Jessica Floyd, president of American Bridge 21st Century, a left-leaning super PAC, emphasized how the timing of the 83-year-old justice's decision "underscores what’s at stake in the 2022 election" especially in the evenly divided Senate.

Breyer's retirement sets the stage for high-profile confirmation hearings where Senate Democrats, if they remain united, could confirm a new justice while also spotlighting how crucial the court has become for the left in terms of gun regulations, voting rights, women's reproductive health and COVID-19 rules.

More: 'Stealthy' Justice Stephen Breyer had a big impact on abortion. That legacy is now in jeopardy

None of the 50 Democratic senators have voted against any of Biden's 42 judicial nominees thus far, according to congressional records.

But political experts are skeptical the appointment of the first African American woman justice is enough to lift Democrats this fall.

“The Democrats got nothing to brag about – they got nothing," said University of Missouri political science professor Stephen Graves. "Have you seen gas prices lately or the cost of goods? This isn’t going to mean much to the average or everyday voter. It ain't going to cut it."

Biden's pick of a Black woman taps into progressive priority

Progressive activist groups have been lobbying for a Black woman to be on the high court since before the 2020 election, when organizations, such as Demand Justice and She the People, were pushing for Biden to elevate one to the federal bench.

Since taking office last year, the Biden administration has appointed 42 new federal judges, 80% of the appointments have been women and 68% have been people of color, according to the American Constitution Society.

“We look forward to (the president’s) historic nomination of a Black woman to the Supreme Court,” the Congressional Black Caucus said in a statement Wednesday following reports on Breyer’s decision. “We expect and will work to ensure she receives a prompt Senate Judiciary hearing, and confirmation.”

Judge Ketanji Brown Jackson had lawmakers' support at her Senate confirmation hearing in April 2021.
Judge Ketanji Brown Jackson had lawmakers' support at her Senate confirmation hearing in April 2021.

Democratic strategist Jason Perkey said the Biden administration understands how much the party needs a slam dunk politically, adding how a historic nomination could galvanize base voters and donors ahead of the midterm elections.

“The hope is that what this does – when the president nominates an African American woman – is that it sparks an enthusiasm that hopefully will generate not just excitement at the grassroots level, but also with donors who will start giving at the same clip that they did a year ago, two years ago," he said.

Biden hasn't publicly shared who is on his Supreme Court short list, but several names have been bounced around publicly, such as D.C. Circuit Judge Ketanji Brown Jackson, who clerked for Breyer in 1999; Leondra Kruger, a justice on the California Supreme Court, and U.S. District Court Judge J. Michelle Childs, of South Carolina, who is being pushed heavily by House Democratic Whip James Clyburn, the highest-ranking African American in Congress.

More: Who is Judge Ketanji Brown Jackson? For starters, she once clerked for Justice Breyer

Melissa Murray, a New York University law professor, said putting a Black woman on the Supreme Court is "non-negotiable" at this point, but that among progressive-minded legal minds there is also a rising tide of conversation about the professional diversity of the nominee.

“A number of people have noted that there has not been a civil rights lawyer nominated to the court since Ruth Bader Ginsburg and Thurgood Marshall,” she said.

Doug Heye, a former Republican National Committee spokesman and deputy chief of staff for former House GOP Leader Eric Cantor, said the president, who's been beset by a wave of challenges including the unfolding foreign policy crisis in Ukraine, will get a political lifeline with a Supreme Court confirmation. Nominating a Black woman to high court, he added, would help repair relations with African Americans voters who have been disappointed by his inability to deliver voting rights legislation.

FILE - Supreme Court Associate Justice Stephen Breyer listens during a forum at the French Cultural Center in Boston, Feb. 13, 2017. Breyer is retiring, giving President Joe Biden an opening he has pledged to fill by naming the first Black woman to the high court, two sources told The Associated Press Wednesday, Jan. 26, 2022. (AP Photo/Steven Senne, File) ORG XMIT: WX401
FILE - Supreme Court Associate Justice Stephen Breyer listens during a forum at the French Cultural Center in Boston, Feb. 13, 2017. Breyer is retiring, giving President Joe Biden an opening he has pledged to fill by naming the first Black woman to the high court, two sources told The Associated Press Wednesday, Jan. 26, 2022. (AP Photo/Steven Senne, File) ORG XMIT: WX401

But a Supreme Court win hardly changes the outcome in November.

"Whoever he nominates, it doesn't change anything in the Senate," he said. "And it doesn't change what people deal with in their daily lives, fix inflation or change the minds of Americans who think we're on the wrong track. All of that still remains a negative for Biden."

In the end, Heye noted, the court will remain a 6-3 conservative majority.

"This is essentially replacing a square peg with a square peg," he said.

Democrats get a chance to wield majority with SCOTUS pick

Whoever Biden selects, experts argue it is a momentary boost that won't address the frustration liberal-minded voters feel about the country and Democrats' inability to pass major policy proposals.

Despite holding narrow majorities in both chambers of Congress, Democrats have seen many of their bills fail to become law because of total opposition from 50 Senate Republicans and resistance from Democratic Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona.

The confirmation of a new Supreme Court justice offers Democrats the chance to make the most of their majority ahead of the November elections.

If all Senate Democrats back Biden's pick, the nominee can be confirmed with Vice President Kamala Harris casting the tie-break vote.

More: Republicans could delay, but not block Biden's Supreme Court pick if all Democrats back nominee

In a statement Wednesday, Sen. Lindsey Graham, R-S.C., said if Senate Democrats "hang together – which I expect they will – they have the power to replace" Breyer without one GOP vote.

"Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court," he said.

An estimate based on polls asking who voters prefer to control Congress, tallied by FiveThirtyEight, shows Republican with a slight 2-percentage-point edge.

Some GOP officials think the nomination process could backfire, and draw scrutiny to Democratic incumbents running in competitive states, who will be voting on a new nominee that conservatives plan to paint as too far outside the mainstream.

In a statement, National Republican Senatorial Committee Chairman Rick Scott said the White House will, "force all Democrats to obey and walk the plank in support of a radical liberal with extremist views."

Supreme Court Associate Justice Stephen Breyer reacts as President Joe Biden delivers remarks on the retirement of Breyer in the Roosevelt Room of the White House in Washington, on Jan. 27, 2022.
Supreme Court Associate Justice Stephen Breyer reacts as President Joe Biden delivers remarks on the retirement of Breyer in the Roosevelt Room of the White House in Washington, on Jan. 27, 2022.

Republicans may be able to fundraise off the Supreme Court announcement given that court picks tend to galvanize GOP voters more than Democrats, noted Heye, who said the GOP message ahead of the midterms is likely to focus on economic insecurity, crime and the border.

"It's just not as big of a voting issue," he said.

Democrats have turned attention to the court, but will that make an impact?

Even though Democrats appear likely to cement a new justice, it's unclear whether the move will win over voters. Democrats and other progressives aren't historically energized by Supreme Court confirmations as much as their conservative counterparts have been, said Graves, the University of Missouri professor.

"They're not running to the voting booth because of the Supreme Court," he said. "Not with voting rights, climate change and student loan debt relief still out there. There are plenty of other things Democrats are going to need to do to compel people to the polls, and I think they need something else for 2022."

But as the Supreme Court has tilted further to the right in recent years, progressive activists and groups have become more keen on its importance.

Throughout the 2020 presidential campaign, for instance, there were calls by left-leaning organizations and individuals urging Democrats to expand the court to more than nine justices.

More: Justice Stephen Breyer's notable majority opinions and dissents, from abortion to the death penalty

Brett Edkins, managing director for policy and political affairs at Stand Up America, a left-leaning voting rights group, said his organization remains committed to pressuring Biden on expanding the court.

"We need to have a serious conversation in this country about whether we should add justices to the court to undo the damage that Donald Trump and Mitch McConnell did," he said.

Those demands culminated in a White House commission created last year to study expansion of the Supreme Court. The panel sent its 300-page report to Biden and noted there was "profound disagreement" over expanding the size of the nine-member court and ultimately punted on the issue by declining to make a recommendation.

More: Biden's Supreme Court commission 'divided' on adding justices but warns of 'considerable' risk

Edkins said the pending vacancy, however, provides another opportunity to showcase how imbalanced the Supreme Court has become.

"It is an opportunity for Joe Biden to reset, and fulfill one of his most important campaign promises to appoint a Black woman to the Supreme Court for the first time – someone who's committed to defending our constitutional rights," he said.

The high court's decisions smacking down Biden's attempts to require vaccines and testing by U.S. employers, and to hear blockbuster cases on abortion, diversity in college admissions and Second Amendment rights next term also serves as a stark reminder of the role courts are playing in voters' lives, according to Sosnik, the former Clinton aide.

"This is a reminder for people from the left and the right of how significant the courts are affecting public policy in our country," he said.

This article originally appeared on USA TODAY: Democrats hope Biden Supreme Court pick gives boost for 2022 midterms