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Joe Biden’s Supreme Court Pick: Is a Showdown Possible?

Joe Biden. Image Credit: Creative Commons.
Then Former Vice President of the United States Joe Biden speaking with supporters at a community event at Sun City MacDonald Ranch in Henderson, Nevada.

Harvard law professor Laurence Tribe isn’t going to flip flop on his analysis from 2020 when he said the-Vice President Mike Pence couldn’t cast a tie-breaking vote for the Supreme Court nomination. As it turned out, Amy Coney Barret didn’t need a Pence vote, confirmed by a 52-48 party-line vote.

The relevance today is of course the question of whether a 50-50 Senate that’s under Democrat control only because of Vice President Kamala Harris can confirm President Joe Biden’s nominee to replace retiring Justice Stephen Breyer.

Constitutional lawyers debate Tribe’s point, but beyond legal theory, it’s irrelevant in the current case as well. A tie-breaking vote won’t be necessary to confirm Biden’s pick—at least if history is any guide. Barring an unforeseen controversy, Biden will have little or no problem getting his Supreme Court pick confirmed on a bipartisan vote.

First very recent history. If Biden indeed nominates Ketanji Brown Jackson, as expected, Jackson was confirmed to the D.C. Circuit by a vote of 53-44 when Republican Sens. Lindsey Graham of South Carolina, Susan Collins of Maine, and Lisa Murkowski of Alaska joined Democrats to vote for her in June 2021.

Moreover, the last two Democrat presidents—Bill Clinton and Barack Obama—had little or no problem getting a confirmation vote for their Supreme Court nominees. The fact is, Democrats go to the mat to fight Republican high court picks and often use ugly smear tactics. Republicans—with a notable exception—let the justice slide through.

The outgoing Breyer was Clinton’s second nominee to the high court and was confirmed in 1994 by a vote of 87-9. A year earlier, the Senate confirmed Ruth Bader Ginsburg with a 96-3 vote. Even after Democrats turned Supreme Court nominations into a blood sport post-Robert Bork and post-Clarence Thomas, Republicans still gave near-unanimous approval to Clinton’s choices.

One might recall that congressional Republicans and Clinton didn’t have warm relations. But, many in the GOP philosophically believe in deference to the president on nominations—except for extreme circumstances.

George W. Bush’s Supreme Court picks were a mix, as 22 Democrats joined the Republican majority to confirm John Roberts as chief justice, while just four Democrats voted to confirm Samuel Alito.

Though, both confirmations were rough. Before getting 78 votes on the Senate floor, Democrats on the Judiciary Committee peppered Roberts about whether his Catholic faith would interfere with his ability to be a judge. Meanwhile, The New York Times dug into the adoption of his children. For Alito, Democrats relied on the tried and true race card and kept most of the party in line with a 52-48 vote.

For Obama’s presidency, the GOP raised some controversy over Sonia Sotomayor’s past judicial rulings on affirmative action that was overturned. With Elena Kagan, the key issue was a potential conflict of interest regarding her role as the Obama administration’s solicitor general at a time when the Affordable Care Act was on its way to the Supreme Court. Still, these were substantive legal questions as opposed to character assassinations. The Senate confirmed Sotomayor 68-31 with nine Republican votes and confirmed Kagan 63-37 with five Republican votes.

That of course brings us to Obama’s third high court nominee, Merrick Garland, who got zero votes for or against his nomination since Senate Republican Leader Mitch McConnell held the line and didn’t allow a vote on the nomination.

But the circumstances were extraordinary. A Garland confirmation after the death of Antonin Scalia would tilt the thin 5-4 center-right majority leftward for who knew how long at the time. McConnell’s only fault was trying to be cute and insisting the voters should have a say. He should have simply said the majority party opposes the nomination and moved on.

As it turned out if the Senate had approved Garland, a liberal majority would have been short-lived, since President Donald Trump would get two more appointments, one replacing the late Ruth Bader Ginsburg that would have returned the court to a 5-4 center-right majority.

If Garland had been Obama’s first or second nominee, he would have passed with more votes than Sotomayor or Kagan. Garland was just in the wrong place at the wrong time as far as nominations go.

Instead, Trump got three justices. Neil Gorsuch was confirmed 54-45, as three Democrats voted for him. But Senate Republicans had to eliminate the filibuster for Supreme Court nominees before getting a vote.

Democrats smeared Bret Kavanaugh, who passed with just a 50-48 vote, helped by Democrat Sen. Joe Manchin facing re-election in West Virginia that year.

Finally, Barrett passed with no Democrat votes in 2020—an election year. McConnell’s cuteness in 2016 caught up with him as Democrats reminded him that he previously said voters should decide. Here again, the reality was the Senate majority decides. Though perhaps because it was so close to an election, Democrats were not quite so nasty as in previous confirmation battles.

We don’t know who Biden’s choice will be for sure. But Senate Republicans have neither the historical will nor the modern-day political motivation to put up a real fight. Republicans are looking at a 6-3 center-right majority and Biden’s nominee won’t change the balance of the court.

That doesn’t mean you won’t have any drama. Sens. Ted Cruz of Texas, Tom Cotton of Arkansas, and Josh Hawley of Missouri will vociferously oppose the nominee as they pander to 2024 primary voters in Iowa and New Hampshire from their Senate Judiciary Committee seats.

Joe Biden Pivot

Image: White House Flickr.

It’s quite likely Democrats, in their eagerness to play identity politics, would much prefer this turn into a fight than Republicans that anticipate a big victory in November.

The confirmation will likely never be in doubt, and the nominee will almost certainly be approved with a bipartisan cushion.

Fred Lucas is chief national affairs correspondent for The Daily Signal and the author of “Abuse of Power: Inside The Three-Year Campaign to Impeach Donald Trump.”

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Fred Lucas is chief national affairs correspondent for The Daily Signal and co-host of "The Right Side of History" podcast. Lucas is also the author of "Abuse of Power: Inside The Three-Year Campaign to Impeach Donald Trump."