Over the course of decades, Republicans have carefully executed a strategy that has transformed the federal judiciary and solidified a clear conservative majority on the Supreme Court.
Crucially, with the Senate split 50-50 and Vice President Harris breaking any ties, Biden has the votes to confirm his nominee so long as he can keep Democrats united.
Those dynamics have some GOP voices urging prudence ahead of the nomination, which Biden said Thursday will come before the end of next month. These Republicans argue that the party is better off focusing on the issues that have already torpedoed the president’s popularity rather than engaging in a heated fight over the nominee that could turn off voters in key midterm contests.
But the bitter aftertaste of recent Republican confirmation battles — particularly that of Justice Brett M. Kavanaugh in 2018 — lingers in the party, and some conservatives have signaled they want to take an aggressive approach and fight whomever Biden nominates. They have focused on the president’s stated intent to nominate a Black woman, criticizing it as divisive in the same manner they have targeted as misguided other efforts to address the country’s history of racism in schools, the military and other institutions.
Sen. Josh Hawley (R-Mo.), a member of the Senate Judiciary Committee, told viewers of Sean Hannity’s prime-time Fox News Channel program Wednesday that Biden’s pledge to name a Black woman reflected a “hard woke left” outlook that has been “race-obsessed, gender-obsessed.”
“I hope Republicans are ready to stand up for the Constitution,” he said.
Other Republicans said Biden’s focus on race and gender means he putting those criteria above choosing the most qualified person for the job.
“Would be nice if Pres Biden chose a Supreme Court nominee who was best qualified without a race/gender litmus test,” former South Carolina governor Nikki Haley (R) tweeted Wednesday, while Cato Institute scholar Ilya Shapiro posted a tweet late Wednesday suggesting that any Biden pick would be a “lesser black woman” compared to another liberal judge he praised. Shapiro apologized and deleted the tweet Thursday, calling it “inartful.”
The White House criticized these comments, arguing that after more than two centuries it is time for a Black woman to serve on the court and that there are plenty of qualified candidates.
“We’d say that the fact that no Black woman has been nominated shows a deficiency of the past selection processes, not a lack of qualified candidates to be nominated to the Supreme Court,” White House press secretary Jen Psaki told reporters Thursday.
Senate Democrats say they are happy to defend Biden’s decision and make a larger case for diversity in the courts. Asked about the attacks in an interview Thursday, Sen. Amy Klobuchar (D-Minn.) quickly noted that Ronald Reagan pledged to nominate a woman to the high court during his 1980 presidential campaign — a pledge he made good on with the confirmation of Sandra Day O’Connor in 1981.
“Sorry, but I just think the answer there is, touché,” Klobuchar said. “There are many incredibly qualified African American women judges, so I’m excited to see who he nominates, and I just don’t think that argument is going to go far. … These things go in all kinds of directions, but it’s our job to keep it focused on the record and to swat back at attacks that are made.”
Several key Republicans — including Sen. Lindsey O. Graham (S.C.), a senior member of the Judiciary Committee — have mounted cautious reactions to the Breyer vacancy that have emphasized the facts of political life: Democrats probably have the votes to confirm Biden’s nominee, and Republicans should adjust their expectations accordingly.
“Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court,” Graham said in a statement Wednesday.
A prominent conservative court-watcher, Ed Whelan of the Ethics and Public Policy Center, also said in a Thursday tweet that it was unrealistic to expect to block the nominee unless “Biden really messes up.”
“Goal should instead be to continue to win public debate over judicial philosophy and inflict political costs,” said Whelan, who declined an interview request.
The context of the Breyer vacancy has lowered the stakes to some degree. Biden is a Democratic president who is almost certain to replace one reliable liberal vote with another on a 6-to-3 conservative court.
President Donald Trump’s three court appointments were significantly more fraught: His first, Neil M. Gorsuch, was to fill a year-long vacancy that opened under his predecessor, Barack Obama, and was left unfilled by GOP senators. His second, Kavanaugh, replaced a famous swing voter in Justice Anthony M. Kennedy, and his third, Amy Coney Barrett, came after the sudden death of liberal Justice Ruth Bader Ginsburg.
The political atmosphere is also a factor: Biden’s approval ratings have been dismal for months, his legislature agenda has stalled, inflation remains a drag on the economy, and war threatens to break out in Eastern Europe. A messy court fight that highlights race and gender issues, some Republicans say, can only distract voters ahead of the midterms and potentially damage Republican attempts to win Senate seats currently held by Democrats.
“I don’t think it behooves Republicans to spend a lot of time distracting from the issues that are keeping President Biden in the 30s and could help them win some narrow Senate races,” said GOP strategist Rory Cooper. “There’s other politics at play, but to me, it just seems like the best course of action for Republicans, absent a wild card, is to let this play out in the least dramatic fashion and then pivot back as quickly as possible to the issues that voters really vote on.”
That advice tracks the approach Democrats adopted in 2020 after Barrett’s nomination, which arrived in a GOP-majority Senate just months before a pivotal election. While some had urged scrutiny of Barrett’s personal background as a member of a conservative Catholic sect, Senate Democrats kept their focus solely on Barrett’s record and her stated views on issues likely to come before the court, including abortion rights.
Senate Minority Leader Mitch McConnell (R-Ky.), who has taken a keen interest in judicial nominations during his four decades in the Senate, has not yet telegraphed how he plans to approach the coming nomination. In a statement Thursday, he emphasized the narrow margin in the Senate and Biden’s campaign promises to bring the country together.
“The President must not outsource this important decision to the radical left,” he said. “The American people deserve a nominee with demonstrated reverence for the written text of our laws and our Constitution.”
McConnell told reporters in Kentucky that he would “give the president’s nominee, whoever that may be, a fair look and not predict, today, when we don’t even know who the nominee is, how I might vote.”
McConnell, who has voted against all 13 of Biden’s circuit court nominees, is seen as unlikely to support any Biden pick. But there are several members of his Republican conference who may. Three GOP senators — Graham, Susan M. Collins (Maine) and Lisa Murkowski (Alaska) — voted to confirm one potential Biden nominee, U.S. Appeals Court Judge Ketanji Brown Jackson, in June.
Collins has voted for every Supreme Court nominee she has considered, from both Republicans and Democratic presidents, with the exception of Barrett, whose nomination she opposed on procedural grounds. Murkowski faces reelection this year and faces a GOP challenger from the right, but she is running for the first time under a new all-parties runoff system in which she can win with the support of moderate and liberal voters.
Both senators are likely to be especially wooed by Biden and Democrats eager to put a bipartisan stamp on their nominee. But the biggest obstacle they may face is the lingering aftertaste of the Trump confirmation battles — particularly Kavanaugh’s, which was upended midway through the committee vetting process after a high school acquaintance, Christine Blasey Ford, accused him of sexually assaulting her in 1982.
In a sign of the persistent raw feelings, two GOP senators made a point of mentioning the Trump confirmations in reacting to Breyer’s retirement this week.
“Whoever the President nominates will be treated fairly and with the dignity and respect someone of his or her caliber deserves, something not afforded to Justice Kavanaugh and other Republican nominees in the past,” Sen. John Cornyn (R-Tex.) said. Sen. Todd C. Young (R-Ind.) said he would give Biden’s pick “a thorough but fair vetting, which Democrats did not afford to President Trump’s Supreme Court nominees.”
Cooper said Republicans would be well served to set aside any hard feelings and keep the case against any Biden nominee focused on issues — particularly issues such as education and coronavirus restrictions that directly impact Americans’ daily lives.
“The best revenge is to win the Senate and stop President Biden’s other judicial nominations,” he said. “A couple of days of embarrassing a nominee in a hearing on C-SPAN is not the same as getting a majority.”