WASHINGTON – Republicans could delay the confirmation of President Joe Biden’s pick to replace Supreme Court Justice Stephen Breyer but they won’t be able to block it by themselves if all Democrats unite behind a nominee.
Under Senate rules that GOP lawmakers changed several years ago, a simple majority is all that’s needed to approve a presidential nomination to the country’s highest court.
That means the 50 Democrats could push through Biden’s pick with Vice President Kamala Harris casting the tie-breaking 51st vote, a fact acknowledged by South Carolina GOP Sen. Lindsey Graham, a member of the Judiciary Committee that will hold hearings on the eventual nominee.
“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,” he tweeted Wednesday shortly after news of Breyer’s retirement broke.
Republicans could still throw up procedural speed bumps to slow down the nomination but Biden’s bigger concern is likelier to be whether the two Democratic senators who have slowed his progressive legislative agenda – Joe Manchin of West Virginia and Kyrsten Sinema of Arizona – would go along with his choice.
Both moderates have thwarted the most ambitious elements of Biden’s agenda: the nearly $2 trillion Build Back Better proposal that included sweeping provisions to fight climate change and billions to strengthen the social safety net for poor and working-class families.
They also both voted against changes in the Senate’s filibuster rules, quashing any chance of passing broad voting rights reforms.
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But on judges, there’s optimism for Biden that Manchin and Sinema would generally support whomever he nominates.
Both supported Ketanji Brown Jackson – mentioned as a leading candidate to replace Breyer – when Biden nominated her to the D.C. Circuit Court last year. And Manchin has shown a deference to presidential court picks, having backed both Neil Gorsuch and Brett Kavanaugh, when Trump nominated them to the Supreme Court.
Manchin voted against Trump nominee Amy Coney Barrett in 2020 citing what he said was a "rushed" confirmation process.
GOP Texas Sen. John Cornyn, a member of the Judiciary Committee, said he expects "there will be immense pressure from the radical left to replace Justice Breyer with a partisan who will legislate from the bench." Nonetheless, Cornyn predicted Republicans would act civilly.
“Whoever the President nominates will be treated fairly and with the dignity and respect someone of his or her caliber deserves, something not afforded to Justice Kavanaugh and other Republican nominees in the past," he said.
This article originally appeared on USA TODAY: Biden pick to replace Breyer could be stalled, but not blocked by GOP