It’s happening again. Last week, Stephen Breyer became the fourth Supreme Court Justice to announce his retirement from the bench in the past five years.
Suffice to say, it’s been a tumultuous time for the highest court in the land. As I’ve noted before, the nomination process is arguably the most high-profile stage for Senators, particularly those serving on the Judiciary Committee. Given the recent circumstances, those stakes are considerably heightened.
A Brief History of Recent Supreme Court Craziness
To quickly recap, after the death of Antonin Scalia in February 2016, the Republican-controlled Senate refused to consider President Obama’s nomination of Merrick Garland. After Donald Trump chose Neil Gorsuch to fill that seat a year later, Senate Democrats attempted to block his confirmation, only for the GOP majority to eliminate the filibuster for Supreme Court nominations.
These tensions escalated even further when swing Justice Anthony Kennedy retired in the summer of 2018. The confirmation hearings for replacement Brett Kavanaugh became one of the most polarizing events of this young century after a pair of sexual assault allegations were made against the Judge. Nonetheless, Kavanaugh’s outraged and pugnacious response secured him enough conservative support to win his approval to the Court.
As if all that wasn’t enough, liberal icon Ruth Bader Ginsburg died in September 2020. President Trump’s replacement Amy Coney Barrett was confirmed and sworn in just a month later. Liberals were livid at the hypocritical reversal from the Garland impasse, while Trump’s triumph may’ve juiced the conservative base just a week before Election Day.
All of this sets the stage for a brutal fight ahead for whoever President Biden picks as Breyer’s successor.
Judiciary Committee Hearing
First of all, since Democrats took the majority after the Georgia Senate run-offs, Sen. Dick Durbin took over as Chairman, winning the top spot despite already serving as Majority Whip. Given the complaints about Dianne Feinstein’s performance during the Barrett hearing, and concerning reports about her health, the Democratic caucus evidently wanted a firmer hand on the gavel.
Since Kamala Harris got a much publicized promotion from the Senate, her seat on the committee was taken by her California successor Alex Padilla. Meanwhile freshman Jon Ossoff, whose victory made the Dems the majority party, was given their final spot on the committee.
These hearings, of course, are almost always remembered for the contentious moments between the nominee and Senators from the party in opposition. So we must take a closer look at the GOP members on the Committee.
Chuck Grassley is once again the Ranking Member for the Republicans, and the 88 year-old will want to impress his increasingly red constituency as he campaigns for an eighth term.
Former Chairman Lindsey Graham, on the other hand, remains the ultimate wild card. Despite his righteous indignation during the Kavanaugh hearings, Graham has voted for a surprising number of Biden’s judicial nominees so far. South Carolina’s senior Senator apparently prides himself on approving most Presidential judicial choices, and therefore could be one of the few gettable Republican votes.
Each member will seek to be the star of the show, with Mike Lee, John Kennedy and Marsha Blackburn comprising a trio of camera-friendly conservative contenders. John Cornyn, Ben Sasse and Thom Tillis are a bit more on the establishment side, although I doubt they’ll take it easy on the nominee.
The largest fireworks of all will likely come from a group of future presidential hopefuls, among them Ted Cruz, Josh Hawley and Tom Cotton. All three of them are skilled at getting under progressives’ skins and stirring controversy. Cruz has been a Democratic bogeyman for years, Hawley will be in the spotlight for the first time since January 6th, and Cotton will want to steal the show in his first SCOTUS hearing. I’d be shocked if they don’t do something that will get Twitter buzzing.
Senate Confirmation Vote
Finally, after all the theatrics, there’s the actual confirmation vote itself. While a 51-50 VP tiebreaker remains the likeliest outcome, it’s not a guarantee. Over the past few years, there were a handful of votes that crossed party lines on this question.
Neil Gorsuch, for example, won approval from Democratic Sens. Joe Donnelly, Joe Manchin and Heidi Heitkamp. Manchin also voted for Brett Kavanaugh, just a month before his razor-thin re-election win, before voting against Amy Coney Barrett two years later. Nevertheless, Manchin has never voted against one of Biden’s previous judicial nominees. Nor, for that matter, has Kyrsten Sinema.
On the other hand, there are a few Republicans who could conceivably support Biden’s nominee. As mentioned before, Graham may be open to supporting the choice. He’s one of only two current GOP Senators, along with Susan Collins, who voted for both of Obama’s Supreme Court picks (Sotomayor and Kagan).
Collins is yet another puzzle. After infuriating progressives with her scale-tipping support of Kavanaugh, she decided to oppose Barrett in the final weeks of her own ultimately successful effort to secure a fifth term.
There’s also Lisa Murkowski, who supported Gorsuch and Barrett but not Kavanaugh (she voted present to allow the nomination to go through without the vote of Sen. Steve Daines, who was attending his daughter’s wedding).
It would be extremely surprising to see any other potential Republican supporters for Biden’s nominee, although there are actually still two current GOP Senators who voted for Stephen Bryer back in 1994. Nonetheless, I wouldn’t get your hopes up for another ‘yea’ vote from Mitch McConnell or Chuck Grassley.