Pity poor Justice Stephen G. Breyer. After nearly 28 years of faithful service on the Supreme Court, he has essentially been hounded off the bench by the left — not even given the simple courtesy of announcing his own departure first.
But in the end, what likely forced Breyer’s hand was President Biden’s weakness. Biden’s approval is in free fall, and the odds are high that Republicans will take control of the Senate in November. As Sen. Mitch McConnell (R-Ky.) told my Post colleague Hugh Hewitt, a Republican-controlled Senate likely would not hold a confirmation vote on a Biden Supreme Court nominee until after the 2024 presidential election. So, if Breyer wanted Biden to choose his successor, the time to announce his retirement would be now.
But while Biden now gets to pick a justice, he is powerless to change the court’s ideological makeup. President Donald Trump secured a decisive 6-to-3 conservative majority that will transform the court’s jurisprudence for a generation. All Biden gets to do is replace one liberal with another.
For Democrats consumed with identity politics, the silver lining is Biden’s pledge to appoint a Black woman to replace Breyer. Biden has dispensed with the standard of nominating the best-qualified person, and effectively embraced affirmative action. As George Washington University law professor Jonathan Turley has pointed out, in so doing, Biden has set race and gender conditions for his appointment that the Supreme Court has declared are strictly unconstitutional for admission to public colleges. Ironically, Biden’s appointee will likely hear a case next term deciding whether race-based admissions programs at Harvard and the University of North Carolina are lawful.
Of course, even before Biden makes his pick, we already know how she will decide in that case. That’s because Democrats have been virtually flawless over the past three decades in appointing reliable liberals to the court. Until Trump came along, Republicans, more often than not, appointed justices who crossed over and voted with the liberal bloc on critical decisions. But there are no Democratic David Souters, Sandra Day O’Connors, Anthony Kennedys or John Robertses who defect and join the court’s conservatives in controversial cases.
The truth is, while every Supreme Court appointment is consequential, this will be the least consequential appointment in decades. So, Republicans should be gracious in victory, and let Democrats have their day.
Already, Sen. Josh Hawley (R-Mo.) is warning that if Biden “chooses to nominate a left wing activist who will bless his campaign against parents, his abuse of the FBI, his refusal to enforce our immigration laws, and his lawless vaccine mandates, expect a major battle in the Senate.” Here’s a better idea: Unless Biden appoints someone obviously unqualified, don’t pick a losing fight. After all, the confirmation of Biden’s nominee is virtually assured. Sens. Joe Manchin III (D-W.Va) and Kyrsten Sinema (D-Ariz.) have supported all of Biden’s judicial nominees, and it is difficult to imagine that they will treat this one differently. Republicans should treat her graciously and present Americans with a stark contrast to the shameful way Democrats treated Neil M. Gorsuch and Brett M. Kavanaugh.
Indeed, it is possible that if Biden’s nominee is qualified, some Republicans will vote for her. It used to be that voting to confirm a justice was not considered an endorsement of that nominee’s philosophy or beliefs, but a vote on whether the person has the temperament, character and intellect to serve on the high court. Although the days when Breyer was confirmed 87 to 9 are long gone, Biden’s nominee could win bipartisan support. When he appointed Ketanji Brown Jackson (rumored to be on Biden’s Supreme Court shortlist) to the U.S. Court of Appeals for the D.C. Circuit, three Republicans — Sens. Susan Collins (Maine), Lindsey O. Graham (S.C.) and Lisa Murkowski (Alaska) — voted to confirm her.
Democrats are hoping a Supreme Court fight will galvanize their dispirited base. They currently have a double-digit enthusiasm gap going into the 2022 midterms. The GOP base is already energized — so there is no need to give Democrats the fight they are looking for. The best thing Republicans can do is make this confirmation a nonevent. Because in many ways, that’s exactly what it is.