Whoa, whoa, whoa, is this really happening?
Is it possible that a Democratic president, who won the popular vote, is going to be able to fill a vacancy on the US Supreme Court?
And could a US Senate majority that also represents a clear majority of voters confirm that judge to the highest court in the land?
Are we about to get a glimpse of ... actual democracy?
That dream was one step closer to coming true on Wednesday, when news broke that Justice Stephen Breyer, of Cambridge, will retire from the court this year. The vacancy means President Biden will nominate a replacement who could be confirmed in short order by the Democratic-controlled Senate.
Like some others on the Supreme Court, Breyer has long clung to the fiction that the high court was above naked partisanship. That hasn’t been true for quite some time.
After all, like the rest of us, Breyer saw then-majority leader Mitch McConnell steal a Supreme Court seat from President Barack Obama, refusing to allow a confirmation hearing for centrist Merrick Garland after conservative Antonin Scalia’s death, and offering the transparently cynical justification that the vacancy had arisen too close to the 2016 presidential election and that voters should be given a chance to weigh in. Poof went that “principle,” of course, when it came to replacing liberal giant Ruth Bader Ginsburg with antiabortion zealot Amy Coney Barrett, whom the Republican Senate majority confirmed even after voting had begun in the 2020 election.
Like the rest of us, Breyer also saw his colleague Brett Kavanaugh, credibly accused of sexual assault, rail during his confirmation hearing about how he was being attacked as part of a political hit by a left wing seeking “revenge on behalf of the Clintons.” And he must be aware that one of his colleagues, Clarence Thomas, is married to a right-wing extremist who supports the Big Lie of a stolen election, bangs on about “the deep state” and “transsexual fascists,” and who, according to reporting by The New Yorker’s Jane Mayer, represents a bunch of clients for whom her husband’s Supreme Court is likely to deliver massive victories.
If only Ginsburg had done what Breyer is finally doing — in her case, yielding to Obama’s gentle pressure and retiring in 2013 — we wouldn’t be looking at a super-conservative super-majority. Because she didn’t, we are in a situation where even replacing Breyer leaves us with six of the nine judges more than happy to slash abortion rights and voting rights and nix giant chunks of long-established federal law and practice. And lately, they’ve done it with reasoning that, according to legal experts, could be charitably described as contrived and opportunistic.
But hey, this passes as a happy day in our diminished democracy! Because Breyer is wrapping up his distinguished career on that bench in time for us to avoid a 7-2 conservative majority, which would be even worse than what we have.
Not that Biden’s pick replacing Breyer is a done deal, of course. The president has made it clear that he intends to nominate the first Black woman here, and she’s likely to be a progressive jurist, too. So, expect Republicans — especially those who play on racial divisions for political advantage — to put up a massive fight. This is where self-proclaimed Senate GOP moderates like Utah’s Mitt Romney, Maine’s Susan Collins, and Alaska’s Lisa Murkowski come in: All of the court candidates whose names are being bandied about so far are stellar jurists, so the moderates should be above the cynical maneuvers of GOP leaders when it comes to this confirmation vote.
If Biden’s nominee can get out of the Judiciary Committee, she won’t need any Republican votes if all 50 Democrats hold the line, but who wants to count on that after the recent months-long show by Senators Joe Manchin and Kyrsten Sinema? They’ve made it clear they are willing to sacrifice our democracy on the altar of a bipartisanship that McConnell and other Republicans killed long ago.
If Biden is able to get Breyer’s replacement confirmed, it won’t fix what ails us. But it will at least show that one shard of the American experiment is intact.
Unfortunately, that’s what passes for good news these days.