This SCOTUS Confirmation May Be Relatively Tame

Things could change depending on nominee, but Democrats appear to have a clear path
By John Johnson,  Newser Staff
Posted Jan 27, 2022 1:44 PM CST
Don't Expect Big Fight Over Pick for Supreme Court
Supreme Court Justice Stephen Breyer is stepping down.   (AP Photo/Manuel Balce Ceneta, File)

(Newser) – Fights over recent Supreme Court nominees have set off political fireworks, but the upcoming one to fill the seat of Stephen Breyer isn't expected to be as dramatic. Much could change, of course, depending on the person selected, but an assessment by Politico suggests that leading conservative groups are largely resigned to what the site terms "implicit acceptance." Coverage:

  • Big reasons: Politico ticks off the reasons this fight has less urgency as, say, the one to replace Ruth Bader Ginsburg, including the biggest one of all: A "new justice would not shift the court’s ideological balance, let alone its majority." Conservatives will continue to hold a 6-3 edge. From the right, Charles CW Cooke at the National Review agrees: "Breyer is a non-originalist who will be replaced by another non-originalist," he writes. "It would, of course, be much better for America were Breyer to be replaced by an originalist, but his retirement will not substantially change the makeup of the Court, and, in all likelihood, it will make things marginally worse for the 'living constitution' brigade."

  • Numbers game: Democrats need only a simple majority to approve President Biden's pick, thanks to a rule change implemented by Republicans several years ago, notes USA Today. Meaning if all 50 Senate Democrats unite, VP Kamala Harris will provide the tie-breaking vote. If Joe Manchin or Kyrsten Sinema break with the party as they've done on recent legislative votes, it's possible Biden could attract GOP moderates such as Lisa Murkowski or Susan Collins.
  • Wild card: Does Mitch McConnell have a legislative maneuver up his sleeve? The Senate minority leader "is generally eager to use any means at his disposal to delay or derail Democrats' best-laid plans, particularly when it comes to the Supreme Court," notes the New York Times. (Just ask Merrick Garland.) Still, as GOP Sen. Lindsey Graham puts it, "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."
  • Top contenders: Biden confirmed Thursday that he intends to nominate the first Black female justice. Two names being floated include Judge Ketanji Brown Jackson, 51, of the DC Circuit Court, and California Supreme Court Justice Leondra Kruger, 45. "If all other things are equal, the president is more likely to nominate Jackson," writes Tom Goldstein at SCOTUSblog. He digs in: "Although a little older, she still is quite young and has many years of service ahead of her. The near certainty of confirmation would outweigh the age gap. So the question will become: Are all other things equal? Or are the president and his team convinced that Kruger would make a substantially stronger justice because they are more impressed with her intellect, writing, and dynamism?" It's too early to say.
  • Timeline: Democrats are pushing to have a nominee confirmed within 30 days, notes Bloomberg Law.
(Read more US Supreme Court stories.)

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