Those who make political predictions tend to end up with egg on their face, but I’ll make one anyway: The confirmation of a new justice to replace Stephen Breyer on the Supreme Court will not become another of the bitter showdowns that the nominations of Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh turned into.
The smart money seems to disagree. The Washington Post foresees “a heated Supreme Court confirmation fight focused on some of the most contentious issues in the nation’s ongoing cultural divide.” NPR is proclaiming that a “Senate confirmation battle looms for Justice Breyer’s replacement.” CNN envisions “a seismic confirmation battle at the start of a midterm election year.”
As Supreme Court justices say, I respectfully dissent.
In recent decades it has become routine to treat any Supreme Court vacancy as a matter of earth-shaking importance. Control of the nation’s highest court is said to be at risk in every presidential election. For the first time since the 1930s, some Democrats have even made a serious push to “pack” the Supreme Court in order to weaken the influence of the conservative majority.
But the retirement of Breyer will have no impact on the court’s ideological makeup. Whomever President Biden chooses to succeed Breyer will be at least as left-leaning as he is. The only real difference is that a liberal justice in his 80s will be replaced by a liberal justice in her 40s or 50s. Her accession will not cause a significant shift in the court’s philosophical makeup, so Republicans will have little motivation to try to derail it. The judge Biden picks may not get much support from Senate Republicans (just as Donald Trump’s nominees got little or no support from Senate Democrats), but there almost certainly won’t be a “seismic confirmation battle” to take down the nominee.
Things might be different were Biden to name a hard-left progressive crusader to take Breyer’s seat. But he has every reason not to do so. With control of the Senate balanced on a knife-edge, anyone the president nominates will need unanimous Democratic approval to be confirmed. He is not about to send up the name of any judge radical enough to jeopardize the support of Democratic moderates like West Virginia’s Joe Manchin. Nor will he want to give Republicans any cause to launch a high-profile Supreme Court fight right before the 2022 midterms.
Last week, Biden reiterated his campaign pledge to name a Black woman to the Supreme Court. There has been some squawking about that, but those objections strike me as disingenuous — and I say that as an opponent of racial and gender preferences. Yes, Americans are entitled to be treated without regard to race or sex when it comes to employment, college admissions, or government contracting. But when presidents select high-level officials, such as Supreme Court justices, cabinet secretaries, or a running mate, they are engaging in a political process and may take into account any political factor they wish. There was nothing wrong with Ronald Reagan promising to name the first woman to the high court, or with George H. W. Bush seeking out a Black judge to succeed the retiring Thurgood Marshall, or with Trump choosing a woman to replace the late Ruth Bader Ginsburg. Biden’s promise to put a Black woman on the court is no different.
At least one conservative Republican senator has made that very point.
“Put me in the camp of making sure the court and other institutions look like America,” Senator Lindsey Graham of South Carolina said in a TV interview. “I believe there are plenty of qualified African American women, conservative and liberal, that could go onto the court.” Graham went on to sing the praises of one potential nominee, extolling US District Judge J. Michelle Childs, who sits on the bench in his home state, as “a fair-minded, highly-gifted jurist.”
If his record over the past year is any indication, Graham — who has voted to confirm 84 percent of Biden’s judicial picks — is a good bet to support Biden’s Supreme Court nominee. So are two other Republicans senators, Susan Collins of Maine and Lisa Murkowski of Alaska, both of whom have similarly backed nearly all of Biden’s appointments.
All of which means that we can look forward to something we haven’t seen in quite a while: a routine nomination and confirmation process. With luck, there will be none of the character assassination, unhinged protests, filibusters, massive advertising campaigns, or stonewalling that were deployed against other Supreme Court nominees. Washington, it appears, is poised to do something important without a fight. Won’t that be a change.