With Justice Stephen Breyer’s announcement that he will retire from the Supreme Court this summer, President Biden has a chance to take the landmark step of putting the first Black woman on the court, while shaping the future of jurisprudence. Thanks to President Donald Trump and the former Senate majority leader Mitch McConnell, there is a new set of rules in place for Supreme Court nominations that all but guarantees Democrats will succeed.
Unless of course, we mess it up.
In 2009, when President Barack Obama nominated Judge Sonia Sotomayor to the court, our team shepherded the nominee through the halls of the Senate for courtesy calls with 89 senators, most of whom waited to announce their intended vote until the Judiciary Committee did its work in vetting and questioning her. Not until that process was complete could they take the measure of her fitness to serve on the court.Those days are gone. Mr. Biden shouldn’t look to the process we followed in the Sotomayor nomination. Instead, he should look to the nomination and confirmation of Justice Amy Coney Barrett.
Over Mr. Trump’s term, Republicans distilled the Supreme Court nomination process to pure politics. Instead of spending weeks scrutinizing a nominee’s rulings and parsing legal intricacies for potential hearing questions, they simply rubber-stamped Mr. Trump’s picks. Even before Mr. Trump announced his nominee to succeed Justice Ruth Bader Ginsburg, the chairman of the Senate Judiciary Committee, Lindsey Graham, declared that he had enough votes to confirm any nominee in both the Judiciary Committee and on the Senate floor.
And within minutes of the president’s nomination of Judge Barrett, Republican senators began to declare their support for her. Thirty-eight days after Justice Ginsburg died, her successor was confirmed. The process exemplified one of the defining features of the modern Republican Party: its laser focus on the judiciary and its extraordinary discipline in filling seats when its members control the Senate — or blocking confirmations when they do not.
While some Senate institutionalists may disagree with this new normal, we would be foolish not to understand it. Qualifications are critical and must be verified. But speed is also essential. Democrats should take a page from Mr. McConnell’s book and move as quickly as possible. Senators who stoke suspense over how they will vote only create fodder for the news media to focus on divisions among Democrats, rather than on the Republicans who are already laying the groundwork to oppose this historic pick. Although Justice Breyer won’t step down until June or July, Mr. Biden should narrow his list and announce his selection as soon as possible, and Senate Democrats should move quickly to confirm her.
In 2017, when Senator McConnell didn’t like Democrats filibustering President Trump’s first Supreme Court pick, for the same seat that he denied Merrick Garland, he blew up the 60-vote threshold so that nominees could be confirmed with just a simple majority. This was, of course, a tit-for-tat response to Senator Harry Reid’s changing those rules for lower-court nominees.
With Vice President Kamala Harris’ vote, Democrats now have the seats they need to confirm a new justice. Despite the new Senate rules being in their favor, Democrats need to eliminate all possible roadblocks. President Biden and Senator Chuck Schumer, the majority leader, have been extremely successful in holding Democrats together to approve a diverse set of judicial appointments, setting a record by confirming 42 in the president’s first year. That’s a sign that Democrats have a winning strategy for filling court seats.
So here’s my message to Democrats: Let’s not overthink this.
There is no reason to drag this out and put the nominee through this kind of ringer. The Republicans changed the rules and the Dems should live by them, especially since the majority is hanging by a thread…
Of course, this assumes that Sinemanchin doesn’t decide that it’s extremely important to spend months on this process so the Republicans can demean and degrade an accomplished Black woman. I’m sure that’s one of the great Senate traditions they believe should be upheld. But assuming they are sated with attention at the moment, perhaps they’ll act like Democrats on this one.