Senate Democrats who have played defense for the last three Supreme Court vacancies plan to move swiftly to replace retiring Supreme Court Justice Stephen Breyer, using the rapid 2020 confirmation of Justice Amy Coney Barrett as a new standard.
Barrett was confirmed exactly a month after President Donald Trump nominated her to replace the late Justice Ruth Bader Ginsburg — and just five weeks after Ginsburg’s death in September of that year. Democrats sharply criticized that timeline then, arguing that most confirmations had taken much longer and that Republicans were trying to jam the nomination through in case Trump lost reelection.
But now that they hold the presidency and the Senate, though just barely, Democrats navigating the complicated politics of a 50-50 chamber are eyeing a similarly swift schedule, even if Breyer does not officially step down until the summer.
In statements, Senate Majority Leader Chuck Schumer, D-N.Y., and Senate Judiciary Committee Chairman Dick Durbin, D-Ill., made clear they would move quickly once President Joe Biden makes his pick. Biden said as a candidate that if he were given the chance to nominate someone to the court, he would make history by choosing a Black woman. The White House has reiterated Biden’s campaign pledge since his election.
Schumer said the nominee will “be considered and confirmed by the full United States Senate with all deliberate speed.” Durbin said he looks forward to moving the nomination “expeditiously” through the committee.
The nomination offers the chance at a reset for Biden and the Democratic Senate after Barrett’s confirmation left the court with a new 6-3 conservative majority and as they have struggled to pass key planks of Biden’s policy agenda. Democrats hope to replace the 83-year-old liberal justice without complication, and some Republicans may be willing to support a Biden nominee. But Democratic leaders are keenly aware that the death or illness of just one in their ranks could flip control of the Senate and upend their plans.
The Senate plans to launch the confirmation process as soon as Biden makes the nomination, regardless of when Breyer officially steps away, according to a Senate aide who was not authorized to publicly discuss the planning and spoke on condition of anonymity.
Democrats could quickly hold committee hearings and even a full vote in the Senate before Breyer steps down, the aide said. The Senate would just refrain from sending the president the paperwork on the final confirmation vote until Breyer has retired.
With such a narrow majority, Schumer will face heavy pressure to keep his caucus united. Two Democratic moderates, Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, have repeatedly bucked their party on policy goals and could oppose a Supreme Court nominee if they considered that person too liberal.
In a statement, Manchin said he takes the Senate’s role to advise and consent on Supreme Court nominations “very seriously” and looks forward to meeting and evaluating the eventual nominee.
At the same time, Democrats will be hoping for a handful of Republican votes. Sens. Susan Collins of Maine, Lisa Murkowski of Alaska and Lindsey Graham of South Carolina, for example, all voted last year to confirm U.S. Circuit Judge Ketanji Brown Jackson, one of Biden’s possible nominees.
Graham indicated in a statement Wednesday that he’s unlikely to support Biden’s pick, whoever it may be.
“If all Democrats hang together — which I expect they will — they have the power to replace Justice Breyer in 2022 without one Republican vote in support,” Graham said. “Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court.”
Collins told reporters in Augusta, Maine, on Wednesday that she was waiting for a formal nomination. Meanwhile, she said the process should take the time needed.
“As you know, I felt that the timetable for the last nominee was too compressed. This time there is no need for any rush. We can take our time. Have hearings, go through the process, which is a very important one. It is a lifetime appointment, after all,” Collins said.
It will be the first time Democrats have had a Senate majority and the opportunity to fill a Supreme Court vacancy in more than 11 years. Since Justice Elana Kagan was confirmed in 2010, the GOP-led Senate has confirmed three justices, all nominated in Trump’s term: Neil Gorsuch, Brett Kavanaugh and Coney Barrett.
All three of those confirmation battles were bitter for Democrats.
Gorsuch was confirmed a year after Republicans blocked President Barack Obama’s choice to serve on the court, now-Attorney General Merrick Garland. Kavanaugh was confirmed after a wrenching hearing in which a high school acquaintance, Christine Blasey Ford, charged that he had sexually assaulted her; Kavanaugh angrily denied it.
Barrett was confirmed in 2020, replacing liberal icon Ginsburg and shifting the balance of the court.
With the roles switched, frustrations have lingered on both sides about the increasingly partisan confirmation battles.
“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,” said Republican Sen. John Cornyn of Texas, who is on the Senate Judiciary Committee.
Senate Republican leader Mitch McConnell of Kentucky declined to comment on Breyer’s retirement, saying he did not want to “put the cart before the horse” before the justice made an official announcement.
“He’s entitled to do that whenever he chooses,” McConnell told reporters at an event in his home state. “And when he does that, I’ll have a response to his long and distinguished career.”
Democratic senators quickly joined the effort to make Biden’s selection historic — the first Black woman to be a justice.
“The Court should reflect the diversity of our country, and it is unacceptable that we have never in our nation’s history had a Black woman sit on the Supreme Court of the United States — I want to change that,” said Sen. Patty Murray of Washington, the third-ranking Democrat.
Durbin said Biden “has the opportunity to nominate someone who will bring diversity, experience, and an evenhanded approach to the administration of justice.”
In addition to Jackson, other potential nominees are California Supreme Court Justice Leondra Kruger and U.S. District Judge Michelle Childs, whom Biden has nominated to be an appeals court judge. Childs is a favorite of Rep. James Clyburn, D-S.C., who made a crucial endorsement of Biden just before the state’s presidential primary in 2020.
Many of Biden’s judicial nominees have reflected his pledge to diversify the federal judiciary, both racially and professionally. He will also face some pressure to appoint a younger judge who could shape the court for decades, a top consideration of Trump for his judicial picks. Jackson is 51, Childs is 55 and Kruger is 45.
Biden made it a point in the lead-up to the South Carolina primary that catapulted him to the Democratic nomination that he was “looking forward to making sure there’s a Black woman on the Supreme Court, to make sure we in fact get every representation.”