Justice Stephen G. Breyer’s planned retirement set up a new election-year challenge as the deadlocked 50-50 Senate confronts a heated Supreme Court confirmation fight focused on some of the most contentious issues in the nation’s ongoing cultural divide.
“Watching the previous administration and Mitch McConnell stacking the courts with individuals who would overturn Roe v. Wade, that is not lost on Nevadans,” said Sen. Catherine Cortez Masto (D-Nev.), who is running for reelection in one of the most closely contested Senate races this fall. “People are going to be paying attention this year and next year. This is such an important, galvanizing issue in my state and across the country.”
Republicans on Wednesday responded with efforts to mobilize their core voters in response, a familiar rallying around judicial matters that have long been an asset at the polls, and preemptively cast the yet-unnamed nominee to replace Breyer as a radical.
“If the White House furthers its pattern of bowing to progressives in selecting Breyer’s replacement, it will further energize our base and put every Senate Democrat on the hook for approving that choice,” said Steven Law, chief executive of the Senate Leadership Fund, a super PAC focused on electing Republicans.
After watching helplessly as President Donald Trump and Senate Republicans confirmed three conservatives to the high court, markedly shifting its ideological balance, Democrats will now be able to steer the process — if they can hold together members who have fractured lately on some policy matters. Vice President Harris has the power to provide the tiebreaking vote in the Senate, which no longer recognizes efforts to filibuster judicial nominations.
The liberal optimism that court politics could motivate voters in a tough midterm year is relatively new. Conservative voters have traditionally prioritized court politics far more than Democrats at the ballot box. McConnell (R-Ky.), now the Senate minority leader, in 2019 credited the politics of Supreme Court nominations as the “single biggest issue” that held Republican voters together in the 2012 and 2016 presidential elections.
But Democrats have recently tried to take advantage of the same issue by harnessing liberal frustration over the rightward drift of the court. After Republicans blocked President Barack Obama’s pick of Merrick Garland to replace conservative justice Antonin Scalia in 2016 and rushed to help Trump replace liberal justice Ruth Bader Ginsburg on the high court in 2020, there were some signs of a shift.
A Pew Research Center poll taken months before the 2020 presidential election found that 66 percent of Biden supporters said Supreme Court appointments were “very important,” compared with 61 percent of Trump supporters.
That effect could be magnified by Biden’s promise to nominate a Black woman to the job, after a first year in office marked by Democratic frustrations over stumbles in controlling the pandemic, managing inflation and passing legislation to expand social services and combat climate change.
“I think it will be a very galvanizing thing for Joe Biden to nominate the first Black woman, for that barrier to be broken,” said Brian Fallon, executive director of Demand Justice, a group that seeks to tilt the high court to the left. “I think that playing out on the national stage will be very politically damaging to Republicans.”
Biden, whose administration has long been prepared for a potential vacancy, plans to name a replacement promptly and in a shorter time frame than the month it took for Obama to name Garland in 2016, according to a person familiar with the White House’s thinking. In the Capitol, senators and aides were already preparing for a grueling confirmation fight that will launch as soon as Biden officially makes his choice and submits the nomination.
Senate Majority Leader Charles E. Schumer (D-N.Y.) is envisioning a timeline similar to that of Amy Coney Barrett, who was confirmed to the court a little more than a month after Ginsburg’s death, according to a person familiar with Schumer’s thinking who spoke on the condition of anonymity to reflect it.
But others cautioned that, because of the evenly divided Senate, it may be difficult to match the pace of the Barrett nomination in late 2020. For example, the Judiciary Committee — like all other committees — is evenly divided between Democrats and Republicans, meaning that GOP senators would hold more power than a minority party usually would to gum up the works, such as by more easily forcing delays in committee hearings and meetings, according to a Senate Democratic aide.
A swift process would mean a confirmation fight is likely to unfold as the Supreme Court finishes out its current term. In a brief appearance in New York, Schumer said that he wants to “be deliberate” but also to “move quickly.”
“I think we need a swift, expeditious confirmation process,” Sen. Richard Blumenthal (D-Conn.), a member of the Judiciary Committee, said in an interview Wednesday. “A Black woman of unexcelled intellect and integrity will create a very strong bipartisan dynamic.”
As with other Supreme Court confirmation fights, much of the public scrutiny will land on a handful of swing votes in both parties that will help determine the fate of Biden’s pick.
One is Sen. Susan Collins (R-Maine), who has voted to confirm all but one Supreme Court nominee during her more than two decades in the Senate. The lone exception was Barrett, whose nomination Collins protested because it was too close to a presidential election. She, along with Sens. Lisa Murkowski (R-Alaska) and Lindsey O. Graham (R-S.C.), voted in favor of Ketanji Brown Jackson, a jurist considered to be at the top of Biden’s shortlist of nominees, to the U.S. Court of Appeals for the D.C. Circuit last year.
“This time there is no need for any rush,” Collins told reporters Wednesday. “We can take our time.”
Another to watch will be Sen. Joe Manchin III (D-W.Va.), a moderate Democrat who has helped thwart much of the Biden administration’s legislative agenda but has mostly supported the president on his nominees. Manchin supported two of Trump’s Supreme Court picks: Neil M. Gorsuch and Brett M. Kavanaugh.
Democrats were already preparing for a fight this fall over the legal protections for abortion, which the conservative majority of the court is expected to weaken this summer. During hearings, a majority of the court appeared sympathetic to arguments made in defense of a Mississippi law that prohibits most abortions in the state after 15 weeks of pregnancy. The law violates the standard set by Roe v. Wade that established the right to abortion until the fetus is viable outside of the womb, at around 22 to 24 weeks of gestation. The Supreme Court has also twice allowed to stand a Texas law that bans abortion after six weeks.
Public polling shows that almost 60 percent of Americans oppose overturning Roe v. Wade, a number that has hardly changed in the past three decades. But their views differ on some restrictions.
Democrats nonetheless believe they will benefit electorally from the court’s ruling this summer, especially if it substantially curtails existing constitutional rights.
“This retirement and the hearings that follow will be yet another reminder to voters that Republicans have systematically undermined that right and worked to overturn Roe, and we believe voters will hold them accountable for it,” said a statement from Laphonza Butler, the president of Emily’s List, a group that backs female candidates who support abortion rights.
Just hours after Breyer’s decision emerged Wednesday, GOP leaders were already signaling their intent to cast whomever Biden nominates as far outside the mainstream.
Blake Masters, a technology investor running for Senate in Arizona, was typical of Republican candidates trying to rile their base on social media, making the outlandish suggestion that Biden might nominate RuPaul Andre Charles, the reality show host known for dressing in drag.
“The left will agitate for the most insane activist possible who has all the most fashionable identity characteristics,” Masters tweeted.
Sen. Rick Scott (R-Fla.), the chair of the National Republican Senatorial Committee, echoed that view Wednesday by predicting in a statement that Senate Democrats would “walk the plank in support of a radical liberal with extremist views.”
But Democrats may have more to gain at this point than Republicans from a new fight over the courts. A January poll by NBC News and the Wall Street Journal found that Republicans have a double-digit election enthusiasm advantage, with 61 percent of Republicans saying they are very interested in the upcoming midterms compared with 47 percent of Democrats.
“It’s a necessary but not sufficient condition for the kind of turnaround Democrats will need to survive 2022,” said Adam Jentleson, a veteran party operative who was a top aide to then-Senate Majority Leader Harry M. Reid (D-Nev.). “It’s not a panacea, but it has the potential to bring the party together and post a major win, which we need.”
Democratic Senate incumbents in Nevada and New Hampshire, who face tough reelections this year, have already signaled that they plan to make the court’s abortion decision a signature issue for their campaigns.
Sen. Maggie Hassan (D-N.H.) focused on Breyer’s record on abortion in her response to his retirement, praising him for “an impressive legacy on the Supreme Court, including key votes to uphold a woman’s right to choose her own destiny and ensure that the Affordable Care Act remains the law of the land.”
Adam Laxalt, a Republican Senate candidate in Nevada who is challenging Cortez Masto, recently reiterated his opposition to abortion but declined to answer a question about how he would vote if the question of codifying Roe v. Wade were put before the Senate.
“Sen. Cortez Masto voted against all of President Trump’s nominees and joined with the liberal mob to sabotage the character of Justice Kavanaugh,” Laxalt said in a statement Wednesday. “It’s this unserious and predictably partisan approach that makes her entirely unqualified to represent Nevada.”
Some observers suggested that Breyer’s replacement will matter less because the court’s ideological balance will not shift.
“Ultimately we don’t believe this changes anything,” said John Seago, legislative director of Texas Right to Life, the antiabortion group behind the ban that halted abortions in the state after six weeks’ gestation. “We are poised for significant wins in the midterm elections.”
Caroline Kitchener contributed to this report.