When Stephen Breyer was nominated to the Supreme Court by Democratic President Bill Clinton in 1994, just nine Republican senators voted against him.
The confirmation process for the nominee to take Breyer’s place upon his retirement, playing out in an evenly divided Senate that Democrats control due to Vice President Kamala Harris’s tiebreaking vote, is unlikely to be so bipartisan.
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President Joe Biden will select a nominee in a midterm election year as his own job approval ratings suffer to the detriment of Democrats seeking to defend razor-thin congressional majorities.
BIDEN’S DILEMMA: FILIBUSTER REFORM OR FAILURE
Many of the senators who will vote on this nominee are likely to at least consider running for the 2024 Republican presidential nomination, potentially setting up a competition over who can do the most to bloody a liberal nominee.
Political norms around judicial nominations have also changed dramatically since Breyer was tapped to join the court. The late Justice Ruth Bader Ginsburg had even fewer Republican senators oppose her confirmation in 1993, with three staunch conservatives voting against her over her liberal legal philosophy and background.
Justice Antonin Scalia, whose iconic status among conservatives is comparable to Ginsburg’s on the Left, was unanimously confirmed by a Republican-controlled Senate in 1986 after he was nominated by President Ronald Reagan.
But after Democrats recaptured the Senate in that year’s elections, fellow conservative Reagan nominee Robert Bork was rejected by the chamber after highly contentious hearings that set the stage for the modern process. Four years later, Justice Clarence Thomas was only narrowly confirmed after Democrats, including then-Senate Judiciary Committee Chairman Biden, highlighted Anita Hill’s allegations of sexual harassment.
Justice Anthony Kennedy, a swing vote who was Reagan’s third choice in 1987, and Justice David Souter, who was nominated in 1990 by President George H.W. Bush and ended up voting mainly with the court’s liberal bloc, were the only Republican picks who received majority Democratic support afterward.
Democrats split 22-22 in Chief Justice John Roberts’s 2005 confirmation vote, with Biden and then-Sens. Barack Obama and Hillary Clinton among those voting no. Just four Democrats voted to confirm President George W. Bush’s other nominee, Justice Samuel Alito, in 2006.
Three Democratic senators voted for President Donald Trump’s nomination of Justice Neil Gorsuch in 2017. Only one voted to confirm Justice Brett Kavanaugh in 2018. None voted for Justice Amy Coney Barrett in 2020.
Republican support for Democratic high court nominees also plummeted after the Clinton years. Nine GOP senators voted for Obama’s nomination of Justice Sonia Sotomayor in 2009. Only five voted to confirm Justice Elena Kagan in 2010. Senate Republicans blocked all consideration of Obama’s nomination of Merrick Garland, now the U.S. attorney general, to succeed Scalia in 2016, keeping the seat vacant for Trump to eventually fill with Gorsuch.
There was even a successful Republican campaign to get George W. Bush, a president of their own party, to withdraw his nomination of Harriet Miers in 2005, partly on the grounds that she was insufficiently conservative.
This approach helped Republicans create a 6-3 majority on the court. Democrats would like to undo that handiwork, starting with Biden’s nominee and possibly extending all the way through expanding the court to include more liberal justices.
Republicans may not be successful in any bid to block Biden’s nominee. The elimination of the filibuster for judicial nominees, expanded by the GOP to include Supreme Court picks in 2017 in order to secure Gorsuch’s confirmation, gives them fewer tools for doing so while in the minority. Sen. Susan Collins, a centrist Republican from Maine, is as likely to buck her party as Sen. Joe Manchin, a centrist Democrat from West Virginia, is his.
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If Biden stands by his pledge to nominate a black woman to the court, Republicans may be hesitant to try a repeat of the Garland episode. Unlike the vacancies created by the deaths of Scalia and Ginsburg, Breyer’s retirement will not alter the ideological balance of the court if Biden is allowed to name his successor.
But both parties will have an incentive to play to their voters ahead of the midterm elections. And neither party has shown much willingness to support the other’s Supreme Court nominees in recent years. Breyer’s replacement cannot expect the same treatment that the retiring justice received almost 30 years ago.
