The Washington PostDemocracy Dies in Darkness

The new norm in Supreme Court nominations: Major partisan battles

Here's what happens after Justice Stephen G. Breyer retires from the Supreme Court – and how President Biden will pick a successor. (Video: The Washington Post, Photo: Bill O'Leary/The Washington Post)
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Well, here we go.

Justice Stephen G. Breyer plans to retire from the Supreme Court, granting President Biden his first vacancy on the nation’s highest bench. And if recent history is any guide, the next few weeks will be a partisan brawl resulting in a narrow vote to confirm Biden’s nominee.

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This isn’t necessarily the case, of course. It’s possible, for a number of reasons, that Republican senators will decide to keep their powder dry on this nomination, given that it is a Democratic president replacing a liberal justice. Their majority on the court is secure and Republicans are in the minority in the Senate, so there’s certainly an argument to be made that the party stands to gain more from demonstrating bipartisanship than digging in its heels for a fight it’s likely to lose.

But, then, this is not the Senate of yore. This is a Republican caucus under the direction of Minority Leader Mitch McConnell (Ky.), the guy more responsible than anyone else for Merrick Garland being free to serve as Biden’s attorney general. This is an era in which Supreme Court nominations have increasingly led to all-out fights and last-minute vote-counting. In 2017, this battle for a lifetime appointment was the trigger for the most recent significant amendment to filibuster rules.

We can visualize this. Breyer is the sitting justice whose confirmation was the least contentious; he was confirmed with 87 votes in 1994. And, in fact, his seat has been the least contentious over time. He replaced Harry Blackmun, who was not opposed by any senators. Before that, the previous five justices to hold the seat were confirmed on voice votes — the typical process until about 1960, in which senators are simply asked whether they confirm a nominee and individual votes aren’t recorded.

Looking at the evolution of each of the nine seats, you can see how most votes were voice votes (black dots) a century ago. Most then became recorded votes, though with heavy margins of support for the nominees. More recently, those recorded votes have been more contentious.

(The line that jumps from the Neil Gorsuch seat to the John Roberts one marks the elevation of William Rehnquist to chief justice during the Reagan administration.)

There aren’t a lot of Supreme Court nominations, but by grouping them into 20-year chunks, we can see the pattern: First the evaporation of the voice vote as a rubber stamp for nominations, and then the recent drop in support for confirmation.

Of course we’re talking about small sample sizes here. Three of the seven confirmations since 2001 were President Donald Trump’s, each of which was contentious for a different reason. But so were President Barack Obama’s two confirmations before that.

A lot depends on who Biden nominates, of course. He has pledged to nominate a Black woman to the bench; selecting a history-making pick might prompt Republicans to be less obstreperous in response. Some Republicans might nonetheless want to demonstrate opposition to any left-leaning justice, particularly Republicans who are interested in taking Biden’s job in two years.

So it is possible that replacing Breyer won’t be a knock-down, drag-out fight. But if it isn’t, that itself would be a break from recent norms.