The balance of power in Washington, D.C., shifted with the announcement last week of Associate Supreme Court Justice Stephen Breyer’s retirement. The impending confirmation hearing for his replacement will determine a new balance between Republicans and Democrats.
Although recent historical precedent may predict a brewing political battle, particularly when the Senate is 50-50, reality is a stark contrast to partisan assumptions. Whether the process takes weeks, months, or years, is of no consequence, as the filling of Breyer’s seat by the Biden administration is inevitable. Yet, how the seat is filled is itself the more decisive issue. Ron Klain, President Joseph Biden’s chief of staff, reportedly told Senate Democrats of the retirement in a bid to provide them adequate time to prepare statements. This led to the announcement being leaked, forcing Breyer’s hand and angering him in the process. Biden is now presented with two potential paths.
The first route is through the Senate and the nomination of a moderate. This would allow for a smoother, less contentious approach to the matter. Such a nomination would be palatable to independents and moderates, and satisfactory to the liberals that compose the majority of Biden’s base. It would run the risk of demoralizing his progressive flank, which for the past several months has been lobbying Breyer to retire to ensure an adequately left-wing successor.
The likelier alternative is the nomination of a progressive. This will have a greater effect on midterm elections. While it would satisfy the leftist desire for an icon in a radical ideologue to step into the breach and continue the legacy of the late Associate Supreme Court Justice Ruth Bader Ginsburg, it would come at the cost of electoral support of independents and the wrath of conservative voters come midterms.
Senate Minority Leader Mitch McConnell, R-K.Y., knows the ground well and is undoubtedly planning a war of attrition for any nominee his faction deems too extreme. Any blatantly belligerent candidate for the opening would need at a minimum, the support of Sens. Joe Manchin, D-W.V., or Kyrsten Sinema, D-A.Z., who will shrink from the service of their party if the flak becomes too great. Both face an uphill fight for reelection in 2024, and both would be unable to withstand the concentrated fire of Republicans.
Democratic Sens. Mark Kelly, Raphael Warnock, Catherine Cortez Masto, and Maggie Hassan would also endanger themselves and their reelections if they towed the party line for an extremist. Sensing this, McConnell already issued a statement urging Biden to govern from the middle. The Republican Caucus is only bolstered in resolve, as Sen. Lisa Murkowski, R-A.K., a consistent swing vote, will be unable to make a major concession, as she faces a significant Republican primary challenge in 2022. Sen. Susan Collins, R-M.E., has hardened on Biden as of late, making it improbable that she will vote to confirm any candidate that is not the embodiment of moderacy. This unsurprisingly leaves Sen. Mitt Romney, R-U.T., as a swing vote, along with Sen. Lindsey Graham, R-S.C., who has returned to form with political cold feet.
Biden and the Democratic Party have one viable option to fill the Supreme Court vacancy if they wish to minimize their losses in the anticipated electoral bloodbath of the midterms: the nomination of a moderate. This withdrawal from progressive policy will anger his aforementioned left flank, but it may save their hopes of avoiding a rout into a lame-duck presidency. The decisions Biden will make in the coming days will weigh heavily upon the fate of his legacy. After all, heavy lies the head that wears the crown. However, heavier still is the weight of this nomination and of the question whether or not this will be enough to tip the scales.