Justice Stephen G. Breyer’s retiring at the end of the current Supreme Court term is an understandable relief to Democrats. President Biden will get to name his successor without any Republican input, likely keeping the balance of the court at six conservatives and three liberals.
Last week, Sens. Joe Manchin III (D-W.Va.) and Kyrsten Sinema (D-Ariz.) shut down Democrats’ efforts to pass voting rights legislation by breaking through the filibuster. Just before Christmas, Manchin backed out of negotiations over Biden’s big spending plan, stalling that indefinitely.
Manchin and Sinema’s willingness to buck the rest of the Democratic Party has earned them the ire of party activists for the better part of last year, and they probably don’t feel particularly well supported by their party.
Senate Majority Leader Charles E. Schumer (D-N.Y.) defended Sinema after liberal activists followed her into a bathroom this fall to demand she support Biden’s spending bill. “Over the line,” he said. But recently, Schumer has been quiet as liberal activists, upset by Sinema’s opposition to getting rid of the filibuster for voting rights, try to set up a primary challenger against her. The majority leader also refused to say that Manchin should not face primary challengers from the left.
Manchin has described feeling “badgered” by his colleagues about the above legislative fights. He’s also increasingly fought back against his fellow Democrats trying so hard to win him over — and in the case of some, like Sen. Bernie Sanders (I-Vt.), criticizing him for not being more of a team player.
“I’m from West Virginia,” he said after announcing he wouldn’t vote for Biden’s Build Back Better spending plan. “I’m not from where they’re from. And they can just beat the living crap out of people and think they’ll be submissive, period.”
It still seems likely both will ultimately vote for whoever Biden nominates. Manchin and Sinema have both supported his lower court picks, including one that is high on Biden’s short list for the high court: Judge Ketanji Brown Jackson. But their presence could also impact who gets picked in the first place. Biden has already promised he will nominate a Black woman, limiting the field of prospective justices.
Even as Breyer’s potential retirement loomed this year, Manchin and Sinema have been quiet about what they’re looking for in a Supreme Court justice.
Manchin has also proved a somewhat unpredictable vote when it comes to Supreme Court justices — at least when it comes to GOP nominees.
He was the lone Democrat to vote for Brett M. Kavanaugh, a President Donald Trump nominee, one of the most controversial justice nominations in modern memory. He also voted for Trump’s first pick, Neil M. Gorsuch, but against Trump’s final pick of Amy Coney Barrett, saying in part he thought the process to confirm her was too rushed.
Sinema hasn’t been in the Senate quite as long as Manchin. She voted against Barrett, and she was running her election campaign when Kavanaugh was accused of sexual assault. She at first declined to say whether she believed the accusations against him but later said she “could not support” him.
But both lawmakers have shown they’re not afraid to take the heat from the rest of their party when they want to vote no on something or force more moderation. Sinema gave a big speech opposing filibuster changes just before Biden came to Capitol Hill to lobby her and others for her vote. And Manchin perhaps single-handedly sunk Democrats’ Build Back Better spending plan as they envisioned it.
But it would still be remarkable for them to oppose Biden’s Supreme Court nominee, especially when that pick likely won’t change the political makeup of the court.
If Manchin and/or Sinema decided for some reason they don’t want to vote for Biden’s nominee, Democrats would have to convince one or two moderate Republicans to approve the person, perhaps people like Sens. Lisa Murkowski (Alaska), who supported some of Democrats’ voting rights push, or Mitt Romney (Utah) or Susan Collins (Maine). Collins supported both of President Barack Obama’s picks.
But Republicans have shown remarkable unity this past year in opposing Democrats’ agenda. So the safest bet for Biden is to get Manchin and Sinema onboard with his pick. And that comes at just the wrong time for Democrats, who have perhaps never been more at odds with these two senators.