And despite the narrowness of their Senate majority, it should be reasonably simple for Democrats to confirm a new justice swiftly, without any Republican votes, before they risk losing the chamber in the midterm elections.
A drama-free Supreme Court process could enhance the tattered image of Congress, help a President whose approval ratings are tumbling and do some good to the tarnished reputation of a court increasingly tangled in politics. And since replacing Breyer, a liberal, will not shift the court’s 6-3 conservative balance, it might seem that the stakes are lower this time.
Political fury that has raged through the fight against Covid-19 has meanwhile brewed a fetid political mood hardly conducive to magnanimous hearings. And the midterm elections in November mean that senators have every incentive to play to the most fervent activist voters in each party before the television cameras.
An ideological docket breeds political discord
Another reason why a smooth confirmation process is unlikely is the growing prominence of the court itself in American political life. The idea that the Supreme Court is above politics has always been something of a myth. But dominating the high court has been a fundamental goal of the conservative movement for several decades.
All of this will inject an even more politicized tone into the next justice’s confirmation hearings. It could lead grandstanding senators from both sides to seek politically motivated assurances that could further the impression that the court is now populated by partisans.
Supreme Court nominees these days are highly prepared — and by their nature are adept at dodging leading questions. But still, Republicans are likely to seek answers on issues like firearms laws that the nominee will be wise to avoid. And progressive senators might ask a nominee in a hearing for their positions on abortion with Roe v. Wade, the landmark case affirming a woman’s right to terminate a pregnancy, under siege at the Supreme Court. While such exchanges are unlikely to thwart a nomination, they will inevitably drag Biden’s pick onto treacherous ground.
Democrats get a do-over
The coming weeks will test the competence of Democrats to get things done while in control in Washington.
Republicans can still cause headaches
No Supreme Court nomination struggle would be complete without the looming shadow of Republican leader Mitch McConnell. Since he’s in the minority, McConnell seems to lack the power to derail Biden’s first pick. But mangling Democratic Supreme Court hopes is his vocation and he used all kinds of procedural chicanery to seat a generational conservative majority on the top bench — indisputably the top achievement of Trump’s presidency.
The wily Kentuckian and the conservative legal establishment that built the current court do have the power to make seating a new justice a painful ordeal. In the first taste of the partisan combat to come, Carrie Severino, president of the Judicial Crisis Network, had this first reaction to Wednesday’s Washington bombshell: “The Left bullied Justice Breyer into retirement and now it will demand a justice who rubber stamps its liberal political agenda.”
“And that’s what the Democrats will give them, because they’re beholden to the dark money supporters who helped elect them,” Severino added.
Biden’s past could come back to haunt him
The current Supreme Court nomination process is unusual in that the nominee will be chosen by a President who has been embroiled in controversial Supreme Court nomination battles.
The refusal of Trump to leave the political scene is also likely to raise political temperatures around the hearings, since the former President is a master at seizing on events that fuel his culture war narratives.
It is a sad commentary on the bitterness of the current era that the nomination of a Black woman, in what promises to be a moving historic moment, could also spark racist and sexist debate. It would not be surprising to hear accusations of tokenism against Biden from the more radical sectors of the conservative media ecosystem as he seeks to make history with his high court appointment. Former President Barack Obama’s first court pick, Sonia Sotomayor, the first Hispanic woman to reach the top bench, attracted such prejudice despite her distinguished public and legal career. Any Supreme Court nominee in the modern era must expect extraordinary scrutiny of their personal, financial and professional lives. But the cross-examinations of the first Black woman Supreme Court nominee are likely to underscore some of America’s enduring prejudices.
The justice that the new nominee, whoever she is, will replace, is renowned for temperance, moderation, courtliness and a willingness to seek common ground with his ideological opposites.
Breyer is an anachronism in modern Washington, where such qualities are now all but extinct. That is why it’s questionable whether Biden, Congress, the court and America itself will emerge with reputations enhanced from a process that in the end may only worsen the national funk.