The last thing an internally estranged America needs is an alienating Supreme Court confirmation battle. But that’s almost certainly what lies ahead following Justice Stephen Breyer’s decision to retire.
President Joe Biden’s first high court pick will create a moment of promise for a struggling administration, offers Senate Democrats a badly needed shot at unity and could shatter another glass ceiling since Biden plans to nominate a Black woman.
And despite the narrowness of their Senate majority, it should be reasonably simple for Democrats to confirm a new justice swiftly, without any Republican votes, before they risk losing the chamber in the midterm elections.
A drama-free Supreme Court process could enhance the tattered image of Congress, help a President whose approval ratings are tumbling and do some good to the tarnished reputation of a court increasingly tangled in politics. Biden also has some hope of picking up a few Republican votes for his nominee. Maine Sen. Susan Collins, who voted for the last two Justices seated by a Democratic president, told reporters on Wednesday there was no rush to confirm the eventual pick and called for a methodical vetting process. And since replacing Breyer, a liberal, will not shift the court’s 6-3 conservative balance, it might seem that the stakes are lower this time.
But such hopes ignore the corrosive impact of recent nomination fights – which ended with Democrats accusing the GOP of stealing seats and conservatives claiming nominees endured character assassination. Then there are legacy scars of Supreme Court battles deeper in the past, some involving the President himself, which may have some conservatives plotting revenge.
Political fury that has raged through the fight against Covid-19 has meanwhile brewed a fetid political mood hardly conducive to magnanimous hearings. And the midterm elections in November mean that senators have every incentive to play to the most fervent activist voters in each party before the television cameras.
An ideological docket breeds political discord
Another reason why a smooth confirmation process is unlikely is the growing prominence of the court itself in American political life. The idea that the Supreme Court is above politics has always been something of a myth. But dominating the high court has been a fundamental goal of the conservative movement for several decades.
So it’s not surprising that the successful campaign has hurt justices’ reputations for impartiality. And the new majority is being used in nakedly partisan ways, with Republican attorneys general seeking to fast-track cases to its marbled chamber on the most polarizing issues, including on abortion, the government’s powers to fight the pandemic and gun control. Former President Donald Trump tried to drag the court into his delusional claims of election fraud and the investigation into the January 6 insurrection – both subjects that have left it exposed to bitter winds of partisanship.
All of this will inject an even more politicized tone into the next justice’s confirmation hearings. It could lead grandstanding senators from both sides to seek politically motivated assurances that could further the impression that the court is now populated by partisans.
Supreme Court nominees these days are highly prepared – and by their nature are adept at dodging leading questions. But still, Republicans are likely to seek answers on issues like firearms laws that the nominee will be wise to avoid. And progressive senators might ask a nominee in a hearing for their positions on abortion with Roe v. Wade, the landmark case affirming a woman’s right to terminate a pregnancy, under siege at the Supreme Court. While such exchanges are unlikely to thwart a nomination, they will inevitably drag Biden’s pick onto treacherous ground.
Democrats get a do-over
The coming weeks will test the competence of Democrats to get things done while in control in Washington.
Despite some early wins, a White House that ran on fixing problems and congressional Democrats have developed a propensity for shooting themselves in the foot. There is growing criticism of Senate Majority Leader Chuck Schumer’s political tactics following the stalling of Biden’s Build Back Better climate and social spending plan and sweeping Democratic voting rights bills. West Virginia Sen. Joe Manchin and Arizona Sen. Kyrsten Sinema, who were roadblocks on those bills, have never voted against a Biden judicial nominee so it would be a surprise if the Democratic coalition splits. But party leaders have learned the perilous nature of a 50-50 Senate majority. And an ill-timed death or serious illness among the Senate’s aged band of Democrats could seriously delay or even jeopardize the confirmation process.
Biden does have one highly effective weapon in his arsenal as he begins his selection process – his chief of staff Ron Klain, who masterminded Supreme Court nominations in the Clinton and Obama administrations. Klain has faced criticism during Biden’s administration, as the White House has stumbled, including on the pandemic and during the chaotic withdrawal from Afghanistan. So the nomination is an opportunity for him to revive his standing in Washington and to deliver the President a much needed win that could reenergize Democrats as tough midterm elections loom in November.
Republicans can still cause headaches
No Supreme Court nomination struggle would be complete without the looming shadow of Republican leader Mitch McConnell. Since he’s in the minority, McConnell seems to lack the power to derail Biden’s first pick. But mangling Democratic Supreme Court hopes is his vocation and he used all kinds of procedural chicanery to seat a generational conservative majority on the top bench – indisputably the top achievement of Trump’s presidency.
The wily Kentuckian and the conservative legal establishment that built the current court do have the power to make seating a new justice a painful ordeal. In the first taste of the partisan combat to come, Carrie Severino, president of the Judicial Crisis Network, had this first reaction to Wednesday’s Washington bombshell: “The Left bullied Justice Breyer into retirement and now it will demand a justice who rubber stamps its liberal political agenda.”
“And that’s what the Democrats will give them, because they’re beholden to the dark money supporters who helped elect them,” Severino added.
Biden’s past could come back to haunt him
The current Supreme Court nomination process is unusual in that the nominee will be chosen by a President who has been embroiled in controversial Supreme Court nomination battles.
Biden, as the chairman of the Senate Judiciary Committee, was instrumental in the blocking of President Ronald Reagan’s nominee, Judge Robert Bork, to the court in 1987. Democrats faulted the ultra-conservative for what they saw as prejudiced views toward the rights of Black Americans and women. But conservatives have long reviled Biden for his defeat of the nomination and many of them date the hyper-politicized trend in nomination battles to that moment. Conservatives with long memories, therefore, have every motive to give Biden’s first nominee a hard time in confrontations that will draw right-wing media attention and claims of double standards if liberals complain.
That’s the case even if Biden was heavily criticized from the left a few years after the Bork showdown over his treatment of Anita Hill, a law professor who alleged sexual harassment by Clarence Thomas, who has since gone on to be a conservative hero on the court.
Some Republicans may also seek retribution on a Democratic Supreme Court nominee for the treatment of Justice Brett Kavanaugh, who endured the most searing confirmation fight in decades. Kavanaugh faced allegations of sexual misconduct dating from the 1980s, which he forcibly denied in emotional, angry hearings before the Trump administration and McConnell secured his confirmation.
The refusal of Trump to leave the political scene is also likely to raise political temperatures around the hearings, since the former President is a master at seizing on events that fuel his culture war narratives.
It is a sad commentary on the bitterness of the current era that the nomination of a Black woman, in what promises to be a moving historic moment, could also spark racist and sexist debate. It would not be surprising to hear accusations of tokenism against Biden from the more radical sectors of the conservative media ecosystem as he seeks to make history with his high court appointment. Former President Barack Obama’s first court pick, Sonia Sotomayor, the first Hispanic woman to reach the top bench, attracted such prejudice despite her distinguished public and legal career. Any Supreme Court nominee in the modern era must expect extraordinary scrutiny of their personal, financial and professional lives. But the cross-examinations of the first Black woman Supreme Court nominee are likely to underscore some of America’s enduring prejudices.
The justice that the new nominee, whoever she is, will replace, is renowned for temperance, moderation, courtliness and a willingness to seek common ground with his ideological opposites.
Breyer is an anachronism in modern Washington, where such qualities are now all but extinct. That is why it’s questionable whether Biden, Congress, the court and America itself will emerge with reputations enhanced from a process that in the end may only worsen the national funk.