Opinion: Breyer’s retirement is an opportunity for Democrats to rally. They shouldn’t squander it.
The opportunity is the chance for Democrats to focus attention and effort on a fight that unites them, for a change, and that they are pretty much guaranteed to win. Replacing the liberal Breyer with a like-minded justice will not change the high court’s 6-to-3 conservative majority, nor will it make the court less likely to produce partisan, retrograde rulings on abortion, affirmative action and other hot-button issues. But it will keep the court from getting even worse and, these days, that is a real achievement.
Imagine the alternative. What if Breyer had waited another year to step down? What if Republicans, in the interim, gained control of the Senate in the November midterm elections? Does anyone believe that Sen. Mitch McConnell (R-Ky.), as majority leader, would give Biden’s replacement nominee a hearing, much less a vote? McConnell’s record on Supreme Court nominations is disgracefully clear.
Equally clear is Biden’s record on getting his judicial nominees approved. Biden confirmed a record 42 federal judges during his first year in office. The Senate is dysfunctional in many ways, but Majority Leader Charles E. Schumer (D-N.Y.) has marshaled his colleagues to green-light Biden’s judicial appointments with remarkable efficiency.
Biden and Schumer have accomplished this without any guff from Democratic Sens. Joe Manchin III (W.Va.) or Kyrsten Sinema (Ariz.). We should know better than to underestimate Manchin’s or Sinema’s hunger for power and attention but, so far, they have voted for Biden’s judicial nominees without any tantrums. There is no real reason to fear that they, or any other Democratic senators, would balk at a Supreme Court appointment. Republicans can try to block Biden’s nominee to replace Breyer, but they will almost surely fail.
The other circumstance that makes this opportunity a political winner for Democrats is that Biden has promised to put the first Black woman on the high court. Republicans may whine about supposed “quotas” or some such nonsense, but they have no standing to complain: Ronald Reagan promised to name a woman to the court before nominating Sandra Day O’Connor, as did Donald Trump before he appointed Amy Coney Barrett. There’s nothing unusual, and certainly nothing wrong, about presidents trying to make what once was an exclusively White male preserve look more like America.
Putting an African American woman on the court would reward and energize the Democratic Party’s most loyal constituency — African American women. They need to turn out in huge numbers if Democrats are to have a prayer of holding on to control of the House and Senate in November.
So let’s imagine that Biden names the woman who heads most court-watchers’ lists of potential nominees: Judge Ketanji Brown Jackson. She has all the credentials anyone could want. She earned both her undergraduate and law degrees at Harvard. She worked for a time as a public defender, which is likely to please Democratic progressives. Last year, Biden named her to the U.S. Court of Appeals for the District of Columbia Circuit and she was confirmed — with three Republican senators voting for her, along with all Democrats. Having been scrutinized and vetted so recently, she should sail through a Senate hearing without a scratch.
The other candidates reportedly under consideration by Biden have similarly sterling records and should also sail through — barring surprises, of course. The point is that Democrats get to spend the next couple of months talking about a person — a Black woman — who shares their values and a process they are all but certain to win.
Republicans would be wise to lay low, knowing that whomever Biden puts on the court, the conservative majority remains intact. But in today’s scorched-earth political environment, I’m not sure that ambitious GOP senators will be able to restrain themselves, especially if the party’s — scratch that, I mean the cult’s — unhinged leader, Trump, eggs them into fighting a battle they cannot win.
That, of course, would only outrage and further motivate the Democratic Party’s base. Right now, it looks as though Democrats will go into the midterms talking about a fresh victory rather than lamenting the ambitious legislation they have been unable to push through the Senate.
Momentum matters in politics, and so does enthusiasm. For no good reason, Democrats have sunk into a sour, defeatist mood. The chance to name Breyer’s successor on the Supreme Court is an opportunity to change the narrative as the midterms near. For Biden and his allies, it could hardly have come at a better moment.
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