Senate Democrats have an incentive to push President Joe Biden‘s forthcoming nominee to replace Justice Stephen Breyer on the Supreme Court quickly because their 50-50 majority could vanish at any time.
A Supreme Court justice has never been confirmed in an evenly split Senate. But Vice President Kamala Harris is the Democrats’ only hope to thwart a tie should Republicans decide to unite along party lines against Biden’s pick.
In the Supreme Court confirmation fight, Senate Democrats face the same morbid challenge as they have since clinching the majority on Jan. 5, 2021, when a pair of runoff races in Georgia went their way. But the 50-50 split due to the twin wins by Georgia Sens. Jon Ossoff and Raphael Warnock left Democrats with no margin for error. That means that if just one of their members leaves the Senate, their advantage vanishes.
And it makes clear why Senate Democrats are eager to get Breyer’s successor through the confirmation process on a fast track. This would replace Breyer, 83, who said Thursday in his retirement announcement that he would stay on the Supreme Court through the end of the current term, in late June or early July.
If a Democratic senator were to retire, under several state laws, Republican governors would have the power to appoint a successor, at least temporarily. Georgia, Massachusetts, New Hampshire, and Vermont are all Republican-governed states that have two Democratic senators. The same rules apply in two other states with Republican governors and one Democratic senator, Montana and Ohio.
BREYER RETIREMENT PAVES WAY FOR BIDEN TO NOMINATE FIRST BLACK FEMALE JUSTICE
Senate Democrats have already experienced what it’s like to lose its advantage temporarily in the present congressional session after Sen. Brian Schatz of Hawaii tested positive for COVID-19 earlier this month and couldn’t show up at the Capitol. The result forced Democrats to suspend legislative business because they wouldn’t have had 50 senators on hand.
Another scare arose in January last year after Vermont Sen. Pat Leahy went to the hospital due to muscle spasms. Leahy, 81, was given a “clean bill of health” after the brief visit, though the incident prompted scrutiny over the state’s Senate vacancy laws. The Vermont senator has already announced he will retire from the Senate after 2022, at the end of 48 years in office.
The odds are long that Democrats would actually lose their majority due to a random act of fate, as only three senators have died in office in the last decade. But with the stakes so high in a Supreme Court confirmation, any possibility has to be considered.
“The Senate will have a fair process that moves quickly so we can confirm President Biden’s nominee to fill Justice Breyer’s seat as soon as possible,” said Senate Majority Leader Chuck Schumer following Breyer’s announcement, along with Biden’s promise to nominate a black woman to the bench by the end of February.
So far, Democrats have been unified in their support of Biden’s 42 judicial nominees, and crossover possibilities from the Republican side of the aisle include Sens. Lindsey Graham of South Carolina and Susan Collins of Maine, both of whom voted for President Barack Obama’s Supreme Court choices of Elena Kagan and Sonia Sotomayor.
And despite Democratic Sens. Joe Manchin’s and Kyrsten Sinema’s reputation of throwing a wrench in the gears of Biden’s Build Back Better agenda and Democratic voting rights bills, the pair have yet to vote against a judicial nominee.
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A handful of GOP senators including Sens. Marco Rubio and John Cornyn have called for the administration to nominate a justice with centrist jurisprudence, echoing Senate Minority Leader Mitch McConnell’s warning to avoid selecting a justice pushed by the “radical Left.”
“The president must not outsource this important decision to the radical Left. The American people deserve a nominee with demonstrated reverence for the written text of our laws and our Constitution,” McConnell said Thursday.
