Senate Republicans are poised to deny President Joe Biden an appointment to the Supreme Court if they take the majority in the 2022 midterm elections.
Five Republican senators raised the stakes around Justice Stephen Breyer’s retirement, telling CNN they’d oppose any likely nominee out of this White House.
But Democrats in the Senate and the White House, though they’ve come off the November elections more worried in recent weeks about a potential wipeout in the midterms, are still avoiding calling directly for Breyer to quit, fearing that it would backfire and encourage the 83-year-old to stay on the bench.
Breyer has told several people who’ve made unofficial efforts to push him to retire that he thinks the confirmation process shouldn’t be political, according to people told of those discussions, and Democrats worry he’d remain as an act of resistance to show he’s not bowing to politics.
Still, top Democrats across Washington would like Breyer to announce he’s going even before the end of the court term in June, so they can get moving on confirmation hearings well before the midterms. More than the political calendar is on their minds — with their 50-50 margin and several aging Senate Democrats coming from states with Republican governors, they head into the new year fearing that their control of the chamber could collapse at any moment.
Privately, multiple Senate Democrats complain that Breyer seems to have let his ego overtake him and he is not being realistic to how radically Supreme Court confirmation politics has changed in the last five years.
Publicly, they continue to approach Breyer gingerly. Asked if the 50-50 Senate divide, the health of his colleagues and Breyer’s own health should accelerate the justice’s timeline, Sen. Sheldon Whitehouse chose his words carefully, noting that he’d deliberately avoided calling for Breyer’s retirement.
“I would hope,” the Rhode Island Democrat finally said, “the choice and its consequences are apparent to the justice.”
And the White House is stuck in the middle, with the President adamant that Breyer should get to make his own decision.
Biden has so far avoided the kind of pressure that Barack Obama tried to exert on Ruth Bader Ginsburg in 2013, when the President hosted the aging justice at the White House for lunch to nudge her toward the exit. But in the West Wing and among civil rights leaders, the frustration is about more than just a Supreme Court seat: every day that Breyer remains on the bench is a day that Biden isn’t able to fulfill his campaign pledge to nominate the first Black woman to the Supreme Court.
Members of the Supreme Court pose for a group photo in April.
There are also the political considerations, with Democrats eager to excite their base ahead of next year’s elections.
“The President made a bold commitment,” said National Urban League President Marc Morial. “I hope it would add to the thinking to make that kind of history.”
Republicans ready for replay of Merrick Garland pick
Meanwhile, Senate Republicans aren’t shy about laying out how they’d handle a nomination from Biden if they take the majority: They wouldn’t.
“You know what the rule is on that,” said Iowa Sen. Chuck Grassley, the ranking Republican on the Judiciary Committee. “You go back to 1886 and ever since then, when the Senate’s been of one party and the president’s been of another party, you didn’t confirm.”
There is no such rule.
Senate Republicans have invoked a number of what they call “rules” in recent years to explain, for example, refusing to hold confirmation hearings for Merrick Garland, the now-attorney general who was Obama’s choice to replace the late Justice Antonin Scalia, or their rushing to confirm Justice Amy Coney Barrett, President Donald Trump’s choice to replace Ginsburg.
But the then-Democratic majority Senate voted to confirm President Ronald Reagan’s nomination of Anthony Kennedy in 1988 and President George H.W. Bush’s nomination of David Souter in 1990 and Clarence Thomas in 1991, all while Grassley was in the Senate. Back then, the Judiciary Committee chairman was a senator from Delaware named Joe Biden.
While Senate Minority Leader Mitch McConnell has sought to downplay this talk — “I’m not going to start talking about what might happen if I’m the majority leader,” he said last week when asked about Supreme Court nominations — he was the mastermind of the GOP efforts to upend the confirmation process to seize seats. And many of his members were more willing to discuss where this is headed, particularly if the seat were to come open in 2023 or 2024, when they would use being in a presidential election cycle to make a similar justification for stonewalling a pick as McConnell did in 2016.
Then-President Barack Obama joins then-Supreme Court nominee Merrick Garland during his nomination announcement in March 2016.
“Constitutionally, the Senate has an obligation to advise and consent. The Senate can take up nominations when it wants to,” said GOP Sen. Josh Hawley of Missouri.
Not that most Republicans could imagine supporting a Biden nominee at any point.
“Given the pattern of judicial nominees he’s put forward so far, he keeps being captive to the radical left in his party. If he nominated a radical leftist justice who would ignore the rule of law and undermine our constitutional rights, I can’t imagine a Republican Senate would confirm an extreme justice,” said Texas Sen. Ted Cruz.
Sen. Thom Tillis, a member of the Judiciary Committee, said Republicans would make a choice if they didn’t like a Biden pick: “Either don’t move on him or have him fail in committee.”
“It’s not our intention to rubber stamp nominees,” the North Carolina Republican said.
Sen. John Cornyn, who sits on the committee but also is a member of leadership, said how the GOP would act on a nominee depends on when a vacancy would occur.
“Usually if we are in the majority and Biden is still in office, what that produces is a negotiation,” the Texas Republican said. “I haven’t really thought about filing the vacancy or not, so I think a lot of that has to do when in that two years of time it occurs.”
Cornyn added: “The later it occurs in his term, the less likely it will be; the earlier, more likely.”
Sens. John Kennedy of Louisiana and Tom Cotton of Arkansas, both Judiciary Committee members, declined to comment on whether they’d be willing to consider a Biden nominee for the Supreme Court. When asked if there’s a Biden nominee he could envision supporting, Cotton suppressed a chuckle.
Democrats scramble for a response
Democrats have struggled to respond to Republicans’ escalation of Supreme Court partisan warfare.
Many who presume Breyer will announce that he’s retiring in June also presumed he was going to announce he’d quit this past June. He’s been on the court since 1994, confirmed a few months before the massive Republican wave in that year’s midterms, and is quickly moving up the ranks of the longest serving justices ever (he’s currently at No. 23).
“I’m deeply concerned,” Sen. Richard Blumenthal, a Connecticut Democrat who’s a member of the Judiciary Committee, said when asked about a Breyer retirement in a GOP majority. “In effect, the threat of Republican control in the Senate is a dagger aimed at the heart of the Supreme Court, which would be potentially out of balance and out of the mainstream if there are more right-wing ideologues appointed.”
Blumenthal said he is not urging Breyer to retire but added: “I’m just hoping he assesses as strategically and intelligently as I know he will do … the potential dangers of a GOP majority.”
Justice Stephen Breyer speaks during an interview on “The David Rubenstein Show” in New York, in September.
In public interviews in recent months, Breyer has also downplayed America’s current divisions, arguing the country has survived other tough times in the past.
Senate Majority Whip Dick Durbin, the No. 2 Senate Democrat, often talks to colleagues about how they’re “a heartbeat” away from the minority with the current 50-50 Senate. Privately, multiple Democratic senators acknowledge that — with seven of their members over age 70 coming from states with Republican governors who’d get to appoint replacements — they worry how right, literally, he’ll turn out to be.
Those senators include Sens. Bernie Sanders and Patrick Leahy from Vermont, who are both over 80 and have been suddenly hospitalized in recent years — Sanders for his heart attack in October 2019 and Leahy for feeling “unwell” last January.
“Absolutely,” said Pennsylvania Sen. Bob Casey, when asked if it were a real worry when looking around at the number of his aging colleagues from states with Republican governors. “No question about it.”
A spokesman for Leahy, who as the then-Judiciary Committee chairman tried to encourage Ginsburg to step down before Obama invited her to lunch to ramp up the pressure, didn’t respond to an emailed question about whether the senator thinks Breyer should step down now. But Leahy’s announcement last month that he won’t seek another term has only increased anxiety about his health among colleagues.
Not only did Republicans seize the opportunities created by Scalia’s and Ginsburg’s deaths, but Trump’s White House counsel carefully worked Kennedy to retire on their timeline ahead of the 2018 midterms, assuring him that he’d want to guarantee that another conservative took his spot.
“Clearly the examples of Justice Ginsburg and Justice Kennedy put in very plain relief what the difference can be for the make-up of the court,” said Whitehouse, the Rhode Island Democrat who’s become a leading voice for changes at the Supreme Court.
“Breyer may pine for a time that never was — a fantasy era when judicial selection wasn’t political,” said Robert Raben, an assistant attorney general in the Clinton administration who has since become an advocate for increasing diversity on the bench. “That’s a chimera, and we on the left need to accept the fact that if you’re assigned a bill number and marked up in a committee, it’s politics.”
Minnesota Sen. Amy Klobuchar told CNN over the summer that she hoped Breyer would retire “sooner rather than later.” Those feelings have spread and intensified among her colleagues in the months since, and Senate Democratic leaders have already had preliminary discussions about how they would conduct a confirmation process, according to people involved.
A close eye on Breyer
When Breyer sat for a round of interviews this summer to promote his new book, White House aides carefully parsed his answers about potential retirement, including when he told CNN that both his health and his new position as the court’s senior liberal would weigh on his thinking. Later he expanded further to the New York Times, saying he would factor in who was choosing his successor when making a decision about stepping down.
The comments led to rounds of speculation among some Biden advisers of what Breyer’s intentions really were as it became clear the justice would not retire ahead of this year’s term. Some viewed the comments as a sign he was taking into consideration the make up of the Senate.
Asked in October about calls for him to retire while the Democrats were secure in their Senate majority, Breyer told CNN, “That’s their point of view,” adding, “I think I have most of the considerations in mind. I simply have to weigh them and think about them and decide when the proper time is.”
Breyer said he does not want to die on the court. Presented with the history of previous justices giving early word of their retirements to presidents, Breyer said, “I’ve looked through the various practices.” In some years, justices who are planning to retire at the end of the term have told the president several months ahead of time.
Still, among many Democrats close to and inside the White House, Breyer’s decision to remain on the bench this year was a serious disappointment. Inside the White House, the prospect of a Breyer retirement has been simmering underneath the surface since nearly the moment Biden took office.
Among other factors, it’s hard to press an 83-year-old justice to retire when Biden says he’s planning to run for reelection when he will be in his early 80s himself.
Then-Supreme Court Justice nominee Stephen Breyer meets with then-Sen. Joe Biden meet in Biden’s office on Capitol Hill in May 1994.
Various candidates to replace Breyer have been suggested to Dana Remus, the White House counsel, by Democrats close to Biden, who are eager to put forward names. Biden allies have also approached Vice President Kamala Harris and members of her team with candidates. There’s even been outside rumor mongering that Biden could appoint Harris.
Among members of Biden’s senior team, at least one maintains a close connection to Breyer: national security adviser Jake Sullivan, who clerked for the justice in the early 2000s. Sullivan’s wife, Maggie Goodlander, also clerked for Breyer three years ago and Breyer attended their wedding on the campus of Yale Law School in 2015.
White House chief of staff Ron Klain, who was a top Senate Judiciary Committee staffer under Biden and has been hyper-focused on judicial nominations since the beginning of this presidency, has a decades-long friendship with Justice Elena Kagan, one Breyer’s few fellow liberals still on the court.
Thinking back on that lunch attempting to nudge Ginsburg in 2013, several Obama aides note that the former President turned out to be justified in his interest in seeing her retire while Democrats had the majority.
Biden has insisted on a more hands-off approach to Breyer.
“The President’s view is that any considerations about potential retirements are solely and entirely up to justices themselves,” said White House spokesman Andrew Bates. Anxiety about potential backfire from pushing Breyer to retire also comes up often in discussions with top West Wing aides, according to several who’ve had those conversation.
Most of the speculation on a potential pick focuses on Ketanji Brown Jackson, confirmed this spring for the DC circuit court of appeals, a traditional feeder for the Supreme Court. A former Breyer clerk, she has already been vetted by the Biden team and interviewed by the President and has been supported in the past by former House Speaker Paul Ryan, a prominent Republican who is related to her by marriage.
California Supreme Court Justice Leondra Kruger is also discussed. She is seen as helped by being well liked among the alumni of the solicitor general’s office, where she was a top official in the Obama administration. She has not, however, been as thoroughly vetted.
Other names currently circulating: Minnesota district court Judge Mimi Wright, outgoing NAACP Legal Defense Fund President Sherrilyn Ifill, Second Circuit Court of Appeals Judge Eunice Lee, Seventh Circuit Court of Appeals Judge Candace Jackson-Akiwumi, and J. Michelle Childs, a South Carolina judge who’s been pushed by House Majority Whip James Clyburn and whose nomination is currently pending for a Fourth Circuit Court of Appeals seat. Clyburn, notably, gave Biden the endorsement that helped salvage his campaign in the 2020 primaries after getting him to promise to appoint a Black woman.
Clyburn, who has previously said he didn’t think it was his place to call for Breyer’s retirement (and who’s 81 himself), is sticking by that position, according to an aide.
Process becomes a problem
Even if Breyer announces his retirement in the spring and they’re still in the majority, Democratic senators and top aides on Capitol Hill worry about how long confirmation could take, between the regular order of the process and expected GOP efforts to slow it down.
Republicans “use power maximally especially as it relates to the judiciary, and I think we should expect nothing different going forward,” said Democratic Sen. Brian Schatz of Hawaii.
And, as with everything these days, Democrats worry about securing votes from Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona.
Republicans have also proven much more adept at activating their base voters around Supreme Court confirmations, whether when Scalia’s seat was in the balance in the 2016 elections, when Brett Kavanaugh’s confirmation hearings exploded ahead of the 2018 elections or when Barrett was rushed onto the bench ahead of the 2020 elections.
Democrats warn against thinking that they’d be the ones who would benefit politically from a retirement ahead of an election, even with a historic pick and potentially momentous abortion ruling motivating their base. The threat to Roe. v. Wade is another reason why they want Breyer to announce he’s leaving ahead of schedule.
“Securing the seat is more important than trying to be cute about the timing for some midterm impact,” said Brian Fallon, the executive director of Demand Justice, a Democratic group focused on judicial nominations.
In 2016, McConnell’s refusal to at least give confirmation hearings to Obama’s nominee left the seat open for almost a year, enraging Senate Democrats and making several of his own Republican members deeply uncomfortable.
Republicans say they’re now ready to leave a seat open for years, if that’s what it would take to wait out a Democrat in the White House. And the stakes could get even higher, if future election challenges make their way to the Supreme Court, which would have an even number of justices if Breyer is no longer in his spot.
Sen. Mitt Romney, a Utah Republican who doesn’t sit on the committee, believes it’s “unlikely” Republicans would keep a seat vacant for two years.
“I would presume we’d go for the hearings and make a decision,” Romney said. “By the way, we might vote no, but we might as well have a hearing and make a decision.”
Multiple Republican senators say they’d rather avoid the kind of showdown that a retirement would set off in a GOP majority, or in a presidential election year — or both.
“If he’s going to retire, he needs to retire next year,” said South Carolina Sen. Lindsey Graham, the former Judiciary Committee chairman. “It would be a lot easier.”
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