Supreme Court confirmation fight to make history in 50-50 Senate

·5 min read

Democrats’ razor-thin majority will have to make history to confirm Stephen Breyer’s successor to the Supreme Court. A 50-50 Senate has never done it before.

As the White House considers candidates to replace the retiring justice, they’ll need a judge who is guaranteed to garner support from every member of the Democratic caucus. That raises the stakes for the confirmation battle, but also provides some comfort for Democrats: as long as they stay unified, Republicans can’t stop Breyer’s successor from being confirmed. Republicans scrapped the 60-vote threshold on high court nominees in 2017.

It will be President Joe Biden’s first opportunity to fill a Supreme Court vacancy. Biden promised that he would nominate a Black woman, should an opening on the court arise, but it could take weeks before the White House names a final candidate. Breyer is expected to serve through the end of his term, but Democrats are looking to move as quickly as possible to confirm his replacement, aides said. Democrats may explore confirming his replacement before his term is over, but delay the succession until after he leaves.

One source familiar with the matter said Senate Majority Leader Chuck Schumer wants to move the nominee along a similar timeline that Republicans used to confirm Justice Amy Coney Barrett. Barrett was confirmed roughly a month after her nomination.

Schumer vowed Wednesday that 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.”

The two Democrats that party leaders will watch most closely are Sens. Kyrsten Sinema of Arizona and Joe Manchin of West Virginia, both of whom opposed weakening the Senate filibuster for elections and voting reform legislation last week. And Manchin has rejected Biden’s domestic climate and social spending legislation. Yet on most nominees, including lifetime judicial positions, they’ve been reliable votes for Biden.

Among the contenders liberal groups are pushing to fill the seat is Ketanji Brown Jackson, a circuit judge on the United States Court of Appeals for the District of Columbia Circuit. She was confirmed last year in a 53-44 vote, with support from both Manchin and Sinema.

“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," South Carolina Sen. Lindsey Graham, one of three Republicans who voted to confirm Jackson to the D.C. Circuit Court, said in a statement Wednesday. “Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court.”

And the vacancy is yet another unity exercise for Schumer, a former member of the Judiciary Committee, who has prioritized the confirmation of circuit and district court judges on the Senate floor this term. After seeing his party fracture last week on elections reform, he will have to bring it together to confirm a Supreme Court nominee.

“Hopefully it will be straightforward and move quickly and we won’t see an effort by Mitch McConnell to prevent action on the part of Democrats to replace him," said Sen. Jeanne Shaheen (D-N.H.). "I can’t imagine that the administration won’t have consulted with people and come up with somebody who will have broad support among the caucus."

Breyer’s retirement announcement could upend the Senate agenda. Senate Democrats are trying to revive their stalled social spending bill and, prior to leaving for this week’s recess, suggested the chamber should focus on bipartisan legislation, such as a funding package that gets government spending off autopilot.

But filling a Supreme Court vacancy is top of mind for the party, even if Breyer’s retirement won’t shift the ideological balance of the high court. After watching Senate Republicans confirm three Supreme Court justices under former President Donald Trump, Senate Democrats have privately raised concerns about whether Breyer would step down while they had control of the Senate. And several noted that with the 50-50 balance, the Democratic majority is fragile and at the whims of any one senator's health.

Senate Judiciary Committee Chair Dick Durbin (D-Ill.) said his committee would move "expeditiously," and Sen. Patty Murray (D-Wash.), the No. 3. Democratic leader, said Wednesday that she is ready to “move as quickly as possible to consider and confirm a highly qualified nominee, who will break barriers and make history as the first Black woman on the Supreme Court of the United States.”

Liberal groups have openly campaigned for Breyer to step down. In a statement, Brian Fallon, executive director of Demand Justice, described Breyer’s decision as a “relief.”

“Justice Breyer’s retirement is coming not a moment too soon, but now we must make sure our party remains united in support of confirming his successor,” Fallon said. “Confirming Justice Breyer’s successor will not break the Republican chokehold on the Supreme Court and it is not a substitute for structural reform, but it will break an important barrier and bring needed diversity to the Court.”

The Supreme Court vacancy is the first time Senate Democrats will be able to confirm a nominee with a simple majority vote after Senate Republicans changed the chamber’s rules in 2017.

Sen. Susan Collins (R-Maine), who voted for six of the current nine justices and supports Biden's judicial nominees more often than her Republican colleagues, said in an interview that she will keep her powder dry "until the hearings are held and until I get a chance to talk personally with the nominee and do my research on his or her record."

"At this point there’s lots of speculation, but we really don’t know who the nominee is going to be," she said

While a 50-50 Senate has never confirmed a Supreme Court nominee, other evenly or almost evenly divided Senates have. During the 47th Congress, from 1881-1883, the Senate confirmed four Supreme Court nominees. And in 1954, when the Senate had 48 Republicans, 47 Democrats and one independent, the chamber confirmed Earl Warren by voice vote. Those confirmations, however, came at a time when the Senate had independents who did not caucus with one party as frequently as today's independents.