• Allon Advocacy

The Coming Supreme Court...Fight?

President Biden's forthcoming Supreme Court nominee will be historic, but also may attract significant bipartisan support in the Senate.

On September 24, 2022, the Supreme Court of the United States, or SCOTUS as it is commonly referred to inside the Washington, D.C. beltway, will celebrate its 233rd birthday. The nine justices usually take July through September off, so no one will be on the bench to celebrate, but they can mark the occasion in October when they are back for a new session.

When the justices reconvene, they also are likely to have another milestone to mark: the seating of a new justice.

Justice Stephen Breyer announced last week that he will step down at the end of SCOTUS’ current term — as long as the Senate can confirm his replacement by the time the new session starts in October. Why did Justice Breyer choose to retire now, who might replace him, and what is the nomination fight for that person likely to look like?

Let’s take a look.

Who Is Justice Breyer and Why Is He Retiring Now?

Justice Breyer was nominated to the Supreme Court in 1994 by President Bill Clinton. President Biden, then a senator from Delaware and chair of the U.S. Senate Judiciary Committee, presided over the nomination hearings. This particular twist is a first in U.S. history – no President in U.S. history has ever nominated a successor to a justice whose confirmation he oversaw in the Judiciary Committee. (President Martin Van Buren chaired the Judiciary Committee before he became president, but despite naming three men to SCOTUS he did not have the chance to replace a justice for whom he oversaw the confirmation process.)

The U.S. Senate eventually confirmed Breyer’s nomination on an 87-9 vote. Another interesting bit of historical trivia: it was the last time that there were fewer than 10 dissenting votes for a Supreme Court nomination.

Justice Breyer was a relatively quiet, out-of-the-spotlight member of the Supreme Court. While one of his most notable dissenting opinions concerned the constitutionality of the death penalty, as Politico noted, he is SCOTUS’ leading expert on antitrust — something technology firms are well aware of since he generally has been favorable toward them. Politico explained, “Breyer’s views on corporate power shifted somewhat over the years, but antitrust experts point to his decision to sign onto Justice Antonin Scalia’s 2004 opinion in Verizon v. Trinko as an example of his tendency to side with big business. A federal judge last year heavily leaned on that opinion, which defended monopolistic behavior, to dismiss the [Federal Trade Commission’s] case against Facebook.”

Justice Breyer is 83 and has been on the Supreme Court for nearly 30 years. While SCOTUS terms are lifelong — there is no age or term limit — he has made it clear he wants to enjoy some years of quiet retirement with his family. By retiring now, of course, Justice Breyer also can control who oversees the process to replace him. As a member of SCOTUS’ dwindling left flank who was originally nominated to the Court by a Democratic President, he wants to make sure it is a Democratic president and Senate that has the reins over his successor.

Contrast that controlled outcome with what happened when left-leaning Justice Ruth Bader Ginsburg passed away while still on the Supreme Court in 2020. Former President Donald Trump was in the White House then and, as majority leader, Sen. Mitch McConnell (R-Ky) oversaw the confirmation process. Justice Amy Coney Barrett was nominated and confirmed, shifting the balance between right- and left-leaning justices from 5-4 to 6-3.

By retiring now, instead of waiting until after Election 2022 when the GOP could regain control of the Senate, Justice Breyer preserves the current ideological balance on the Supreme Court.

Who Might Replace Justice Breyer?

President Biden has said he plans to announce his SCOTUS nominee by the end of this month, but who is he likely to choose?

On the campaign trail in 2020, President Biden pledged that, if given the chance, he would nominate the first Black woman to SCOTUS. And last week he said, “The person I will nominate will be someone of extraordinary qualifications, character, experience, and integrity. And that person will be the first Black woman ever nominated to the United States Supreme Court.”

Given that pledge, the media so far has focused on three leading contenders for the spot:

  • Judge Ketanji Brown Jackson, who currently sits on the U.S. Circuit Court of Appeals in Washington, D.C. (often thought of as the second-highest court in the nation) and who once worked for Justice Breyer as a clerk. She succeeded current U.S. Attorney General (and failed SCOTUS nominee) Merrick Garland on the D.C. Circuit. Brown Jackson also has Republican ties, albeit familial: she is related by marriage to former Speaker of the U.S. House Paul Ryan (R-Wis.).

  • California Supreme Court Justice Leondra Kruger, who worked as principal deputy solicitor general during the Obama administration. The Office of the Solicitor General is an agency within the U.S. Department of Justice that is tasked with litigating the interests of the U.S. government before SCOTUS and federal appeals courts. Kruger argued 12 cases before SCOTUS while in that office. A California native, SCOTUSBlog has called Kruger the “frontrunner” to replace Justice Breyer.

  • Judge J. Michelle Childs, who was nominated and confirmed to a position on the U.S. District Court for the District of South Carolina in 2010. She is a labor lawyer by trade. President Biden already is very familiar with Judge Childs: in December he nominated her to be on the D.C. Circuit (again, considered the second-highest court in the land). In a surprisingly quick announcement, Sen. Lindsey Graham (R-S.C.), a Republican, already has said he would be inclined to vote for Childs. Judge Childs is also a favorite of Rep. Jim Clyburn (D-S.C.), a close Biden ally.

Whomever replaces Justice Breyer will join one of the nation’s most elite groups. In SCOTUS’ 233-year history there have been only 115 justices. (Contrast that with more than 12,000 individuals who served as senators or members of Congress throughout U.S. history.) The average term for a justice is 16 years, but given the relative youth of the women President Biden has on his shortlist, the 116th justice could serve for far longer, leaving an indelible mark on the way federal law is interpreted. Or, as Punchbowl News, explained, “The political implications are obvious. Although this selection doesn’t give Biden the chance to reshape the ideological makeup of the court, he gets to choose a young jurist to cement the liberal lean of this seat for years to come.”

And that “liberal lean” will tilt even more leftward with the departure of Justice Breyer and the confirmation of a Biden nominee. Dan Kobil, a law professor at Capital University, called Justice Breyer only “mildly progressive.” He told The Hill, “I think it likely that whoever is appointed will likely be more liberal than Justice Breyer, who often had a decidedly conservative bent.”

It is because this ideological makeup is so important, of course, that Supreme Court nominations can be so explosive.

What Will The Senate Nomination Fight Look Like?

The coming Supreme Court nomination has yet another historical notch on its belt: there has never been a confirmation of a SCOTUS nominee in a 50-50 Senate. Democrats cannot lose a single vote and, so far, the Senate Democratic caucus has been unified on Biden’s judicial nominees.

Sen. Joe Manchin (D.W. Va.), who has been a thorn in the side of the White House on the Build Back Better spending bill and voting rights legislation, indicated last week that he is likely to support President Biden’s nominee. In fact, Sen. Manchin said even if he disagrees with a nominee, he can vote for her. Specifically, the senator explained, “[F]orget what philosophical beliefs they may have … it’s basically … Have they been fair? … That’s what I’m looking for, really: the character of the person.”

The president also has this fact going for him: as Politico noted, Republican senators like Susan Collins (Maine) and Lisa Murkowski (Alaska) so far have generally been supportive of President Biden’s lower court nominees. So has Sen. Graham. In fact, when Judge Ketanji Brown Jackson was confirmed to the U.S. Circuit Court of Appeals last year, these three GOP senators voted for her.

U.S. Senate Majority Leader Chuck Schumer (D-N.Y.) has said he will move with “deliberate speed” to fill Justice Breyer’s seat. Given the fact that, in 2017, Senate Republicans dismantled the filibuster for Supreme Court nominees, that promise will be much easier to keep. There also certainly is very recent precedent for a speedy confirmation. The nomination process for Justice Coney Barrett, mentioned above, took less than a month after President Trump nominated her in 2020, a presidential election year.

It also appears that outside right-leaning groups will stand down. According to reporters Meredith McGraw and Hailey Fuchs, “[S]ome of the top officials and activists in that universe indicates that they aren’t planning a vicious political fight over President Joe Biden’s pick to replace retiring Justice Breyer.” The Hill also has reported Senate Republicans themselves are not sure how forcefully to rhetorically oppose the eventual nominee — even if most GOP senators eventually vote against her.

Barring anything untoward surfacing about the eventual nominee, then, it is likely that whomever President Biden nominates will end up on the Supreme Court by October, possibly with a relatively strong bipartisan confirmation vote, ready for the new term and SCOTUS’ 234th year.

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