The Breyer Retirement: Candidates and Possible GOP Strategy

January 28, 2022

Yesterday, Supreme Court Justice Stephen Breyer formally notified President Biden of his intention to retire at the end of the current term once his successor is confirmed. Biden made a public statement reiterating his campaign promise to appoint a Black woman to the Court for the first time in history. Democrats are discussing plans to confirm a nominee quickly this spring before the term ends, and Biden said yesterday that he plans to name his pick in about a month. This gives Biden a chance to “reset” his presidency and motivate Democratic voters.

Here are some of the likely names that will make up Biden’s short and long lists of potential nominees.

Tier 1 - Likely Nominee

• US Court of Appeals for DC Judge Ketanji Brown Jackson

Tier 2 - Don’t Be Surprised If It’s:

• California Supreme Court Justice Leondra Kruger

• Federal District Court Judge J. Michelle Childs (SC)

Tier 3 - Be Somewhat Surprised If It's:

• North Carolina Supreme Court Justice Anita Earls

• US Court of Appeals for 2nd Circuit Judge Eunice Lee

• US District Court Judge Mimi Wright (MN)

Tier 4 - Be Very Surprised If It's:

• NAACP Legal Defense Fund Director-Counsel Sherrilyn Infill

• Vice President Kamala Harris

Unless there is some arcane Senate rule I am unaware of, McConnell cannot stop the Democrats from confirming Biden's nomination to replace Breyer on the Supreme Court. It was McConnell himself who carved out the filibuster exception for SCOTUS appointments in 2017. So, the Republicans cannot stop the confirmation as long as all 50 Democrats stick together.

So what's the GOP strategy for blocking the appointment (you know they must be thinking of one if they don't already have one)? My guess is it will be to cleave off Manchin or Sinema just like they have on Build Back Better and voting rights. Both Democratic Senators have supported every single Biden court appointment so far. Biden has appointed more federal judges in his first year than any president since Kennedy, and quite a few of them have been Black women, progressives, and even some public defenders. There's no reason to think either would oppose this appointment either. In fact, yesterday Manchin said he would not oppose an appointment for ideological reasons (saying he would not oppose a liberal pick). So, how will the GOP cleave one of these two?

Well, for Sinema, attention and flattery seem to have worked very well so far for the GOP. It's really hard to understand what she believes in besides being the center of attention. But she's voted for every single Biden appointment so far, including Ketanji Brown Jackson to the Court of Appeals. (Let's be careful about this; it is not unheard of for Senators to vote for a candidate to a lower federal court but oppose that candidate's elevation to the Supreme Court.) Maybe the GOP will start being more public with a lovefest for her in an attempt to get Democrats to attack her.

In Manchin's case, something similar may be happening. It's not a lovefest, but it has the potential to rile up progressives against the West Virginia Senator. Manchin took some big campaign contributions from a Republican donor and his wife after he helped kill BBB. The report about it hit yesterday. Coincidence? Probably. But that doesn't mean that Republicans won't use it as an opportunity to cleave Manchin away from Biden's pick. We'll see how it unfolds.

It's important to remember that just one vote will kill any Biden nomination, so we need to tread carefully. Assuming no Republicans vote for the nominee, Manchin and Sinema are both necessary votes as long as the Senate is 50-50 (that's actually true for every single member of the Democratic caucus).

There is one other thing to consider. The GOP might want to hold off on stopping this nomination. It will be a Black woman and the appointment will help Biden and the Democrats with some measure of enthusiasm as the midterms approach. However, an assault on the nomination could cause even more enthusiasm among Democratic voters, especially voters who do not often turn out in midterms. And why is this an especially important concern for the GOP to consider?

This pick will not change the power dynamic on the Court. First, no matter who Biden nominates, the Court will still be 6-3, with conservatives in control. Is it really worth exciting your opposition's base over something that will not - from the GOP point of view - change anything? Second, is the Court going to overturn Roe v Wade this term? If it does, it will create a two-prong challenge for the Republicans all on its own. Conservatives have riled up it evangelical base to get rid of Roe for decades. It's why a lot of them vote in the first place. What kind of challenge will it be to get them to the polls once their mission is accomplished?

And the second prong is how much overturning Roe will motivate the Democratic base and women who might otherwise vote Republican in November. If you couple that with an assault on the first Black woman to be nominated to the Supreme Court, it could create very serious GOTV problems for the Republicans. The party and its base is probably too racist right now to even consider this, but their best course of strategy would be to support Biden's pick (there is still a chance this might happen - or more likely several Republican Senators will vote for her once they see she's going to win).

McConnell already seems to be working on a strategy to cleave Manchin and Sinema by his statements yesterday raising "concerns" that Biden will “outsource” the choice to the "radical left"¹ and that he will take a "fair look" at the nominee. That language appears all directed at centrist Democrats. McConnell has disingenuous Sen. Susan Collins (R-ME) out front pretending to be the voice of reason (which some centrist Democrats might believe) arguing to slow down the process. It doesn't help Biden that Sen. Dianne Feinstein (D-CA) is calling on a slower confirmation process (something has done too). Feinstein is playing right into McConnell's hands. In the end, the California Senator will support Biden’s pick. However, anything can happen in politics with a 50-50 Senate in five months. That’s why Biden wants the pick and confirmation to happen as quickly as possible.

1. This is yet another example of Republican projection. It was the GOP who outsourced their judicial picks to the right wing Federalist Society under the Trump Administration.