Thoughts on Justice Breyer's Retirement
For once, Joe Manchin Isn't the Most Important Senator...Thoughts on the Tricky Politics of Race and Appointments
Associate Justice Stephen Breyer retired this past week. Immediately, the right-wing grift machine went into high-gear about the need to stop Biden’s replacement from being concerned and preserve “Trump’s Supreme Court Majority.”
Groups raising money on being able to stop Biden from replacing Breyer are being dishonest. You’d do better handing over to a Nigerian Prince scammer. Their stories are a bit more plausible.
While the Democrats, hold a 50-50 split in the Senate with Vice-President Harris the tie-breaking vote (most likely), the odds are almost certain that Breyer’s replacement will be confirmed. There are things that could stop it: A Democratic Senator dying and a Republican Governor appointing a Republican replacement making Mitch McConnell Majority Leader or Joe Manchin imagining there’s some future in the GOP for someone who voted to find Trump guilty in both impeachments and joining the GOP. None of that will have to do with the groups that are fundraising. They are impotent to stop Biden’s appointment whoever she is. In addition, Biden can probably get two to three attempts to get this right unless the GOP takes control of the Senate before the end of the Session.
Manchin Will Stand Aside for Collins as the Most Important Senator
Because of hyperpartisanship, the vote is easy to handicap before we even have a nominee. Every Democrat except for Manchin is an almost certain “Yes.” Every Republican except for Senators Susan Collins (R-ME.), Lisa Murkowsi (R-AK), Mitt Romney (R-Ut.), and maybe Lindsey Graham (R-SC) is an almost certain no. So before we know who she is, the nominee has 49 of 100 votes, and only needs one of the remaining five to win.
Graham is one of the more interesting votes. In years past, he’s prided himself on being bi-partisan and voting to confirm both of Obama’s Supreme Court picks. However, the Kavanaugh hearings and the Democrats’ over-the-top attacks have led Graham to an apparent change of mind. As Chairman of the Senate Judiciary Committee in 2020, he spearheaded the pre-election confirmation hearings of Justice Amy Comey Barrett (R-SC.) Graham’s desire for bi-partisanship may be gone forever as he embraces partisan war or he may return to form.
While many on the right loathe Romney, he should not be counted an automatic “Yes” vote. Despite what’s said about him, Romney has vote a solid traditional conservative voting record and has said no to many Biden appointees.
Murkowski is a big target for Biden. She faces a primary challenge this year which would indicate a “no” vote on confirmation. However, the challenge for Murkowski is that she’ll be facing a “top four jungle primary” where the top four vote-getters from all parties advance to the November ballot. Murkowski is a cinch to finish in the top four, but beyond that political calculations get tricky. She’ll need to finish in the top two and either get enough second preference votes for voters who chose a Democratic candidate or voters who voted a Republican candidate depending on how the other candidates finish. In the end, her support for abortion makes her a likely”yes” vote.
Collins is the key Senator. She’s the most gettable Republican vote for Biden. She has a long history of delivering bi-partisan votes to Democrats. She just won her fifth term and has no fear of facing voters until 2026 if she even chooses to run again. She’s also one of the most fanatical supporters of legal abortion remaining in the Republican Party. In addition, on these issues, of Supreme Court justices, her votes and Manchin’s have been linked. Both voted to confirm Kavanaugh, both voted against confirming Amy Comey-Barrett.
If Collins votes yes, Manchin will vote yes, having been assured of doing a solid favor for his party without ticking off his state’s socially conservative electorate by being the deciding vote.
If Collins is a no, that signals the nominee is bad and problematic and likely no other Republican votes Yes and Manchin will vote No as well.
I think provided the President doesn’t pick someone horrible, Collins will be on board. For the nominee to be confirmed, she has to be.
The Race Factor in Picking a Justice
Much has been made on the right of President of President Biden’s decision to choose a Black Woman for the court and thus exclude the vast majority of the nation and the nation’s lawyers for discrimination.
I have some sympathy with the argument. I’m not a fan of race-based preferences as a rule. We shouldn’t be judging people based on race or gender in employment or housing decisions, but practice non-discrimination.
I find some of the leftist arguments on this point to be non-persuasive. The idea that Republican Presidents only choose judges or tend to choose judges of a certain ideology is preposterous. So do Democrats. It’s just not discussed as much or assumed to be by default, non-ideological.
Nor do I find the idea that until 1965, there was a racial requirement of being white and until 1981 a gender requirement of being a woman as an excuse for discriminating in 2021.
If I had my way, we would pick all our judges based on nothing more than merit and their judicial philosophy. But is that even possible? Former NFL star and Civil Rights and Pro-Life Activist Benjamin Watson made a good point:
It is true that Trump pledged to appoint a woman to the Supreme Court in 2020. I hadn’t even remembered it. I’d read “a woman” as “A(my) Comey Barrett” from the start. Reagan also pledged to appoint “a woman” ahead of choosing Sandra Day O’Connor in 1981. For any other job in the country, this would be considered discrimination.
However, whatever my ideal of pure meritocracy in judicial appointments, the real world doesn’t work that way and that’s doubly true when it comes to the Supreme Court. There are 1.1 million lawyers in the United States at any given time and only nine seats on the Supreme Court that are lifetime appointments. There’s no objective way to determine who’s the best and there’s been a lot of discrimination of all kinds in the choice of Justices.
There’s age discrimination. If you’re past your mid-50s, you’re not going to get consideration for a court appointment under normal circumstances* because every president wants that lifetime appointment to mean thirty years of influence. Judicial appointments are made based on rewarding old political favors or hoping to gain ground in the next election. Appointing a justice because he’s from the midwest isn’t a decision merit.
Accounts of President Trump’s reasoning for both Neil Gorsuch and Brett Kavanaugh indicated the ex-reality TV star judged them like he was casting a part in a TV show and figured out from interviews if they looked good for the part. There’s so much that goes into this process that’s all politics and nothing to do with merit.
The fact of the matter is that Black voters are a vital constituency for the Democratic Party. It’s not inconsistent with history or precedent for the President to make his choice from that constituency. While I think it would be far better to not say that sort of thing in advance, this is politics and if you didn’t have a problem with Trump saying he would appoint a woman how you can make a huge deal out of Biden saying he’d appoint a black woman.
Will Biden Choose the Right Woman This Time
There are many Democratic black women who would be well-qualified for the Supreme Court. The question is whether Biden will choose one of them.
Biden faced a similar question with his choice of Vice-Presidential running mate with the pledge that he would choose a woman the thought being in light of the murder of George Floyd, that woman should be “a person of color.”
There were many well-qualified women Biden could have chosen. He could have chosen Senator Tammy Duckworth (D-Ill), a disabled combat veteran. He could have chosen Atlanta Mayor Keisha Bottoms, who while having limited experience, hailed from the swing state of Georgia. He could have chosen Congresswoman Val Demings (D-FL), a former police chief who also served as a House Impeachment manager on the first Trump impeachment.
The one major argument against all of these women was that they had only been in their current office briefly. You can argue all the benefits of them, but I think they were very well-accomplished.
Biden chose Kamala Harris instead. Harris was just as new to her position as the other three women. She hailed from California, a state that is guaranteed to vote for the Democrats. I know of people who really didn’t want to vote for Trump who came around to supporting him because the idea of President Kamala Harris was just too frightening. You can argue that’s just because they’re sexist and racist. But I honestly don’t think that the backlash would be near as bad had any of these other three women been nominated.
Harris had flailed out in her own presidential campaign, failing to reach the Iowa Caucuses. As Vice-President, she had one cringe-inducing moment after another. Every task she’s been given, she’ s failed at. While Mike Pence’s approval rating was generally better than Trump’s, Harris’ began to fall even before President Biden’s.
The one reason to choose Harris over Deming is that Harris would satisfy the progressive left. Deming is a moderate new Democrat who can win in a swing state. What Democrat wants that (you know other than the kind that want to win elections?) Harris’ political career was born in the most emblematically progressive city in America, San Francisco, and she was elected Attorney General and U.S. Senator from a far left state in California. This electoral background may have made progressives happy (except perhaps for criminal justice reform activists) but has left her very ill-equipped to speak to the rest of the nation.
The President’s problem is that he tries too hard to delight progressive activists and we’ve seen him as President time and time again with Build Better Back or Neera Tandem’s nomination to lead the Office of Management and Budget. That’s the great risk for Democrats.
Biden’s got an opportunity for an easy layup. All he has to do is choose a mainstream black female judicial nominee and he gets a nice win. The risk for Democrats is that Biden will try to impress progressives by going for a three pointer from half court, choose a nominee that will make Bernie Sanders and AOC happy but alienate Manchin, Collins and the Republicans. The risk isn’t so much that the seat won’t be filled as Biden can probably get two or three chances to get this right as long as Democrats hold the Senate this year, but rather that the Administration will continue to look like its flailing ahead of the midterms.
The Risky Game of Racial Politics
Whoever the President’s nominee is, there are going to be some ugly things said on various blogs and podcasts. Whatever legitimate criticism can be levied of a nominee, there are always folks on the right who will make it ugly. There are also a lot of people wanting to avenge the mistreatment of Brett Kavanaugh at his confirmation hearing.
Republicans would be making a huge error if they try this on this nominee. The Democrats mistreatmen of Kavanaugh was a mistake that arguably cost them the Senate as three Red State Democrats lost in a Democratic wave year in the House in 2018. Republicans would be making a similar mistake. All they have to do to have an awesome in the 2022 election is avoid a big error. Coming off as racist and sexist bullies would alienate suburban voters and would weaken GOP’s hand of the 2022 midterms.
At the same time, Democrats may face a long-term problem because of the idea of specifically reserving a seat for a Black woman on the Supreme Court after choosing a Black woman for the Vice-Presidency. In some ways, it suggests a Democratic Party that’s out of touch with the country’s growing racial diversity, which isn’t defined by White and Black alone. By stating, he would choose a Black Woman, Biden was also shutting the door on candidates with Hispanic, Asian, Pacific Islander, or Native American heritage. The Democrats have been losing ground with these other ethnic groups and the logic behind this appointment may partially explain why.
Federal Judge Sri Srinivasan, an Indian-American man has been cited by Ilya Shaiproas a much better pick who will not be considered because of his race and gender. A great danger to the Democrats is that non-Black minority voters begin to conclude that the Democratic Party is actively discriminating against them. If this happens, the sorts of gains made by the GOP among those demographics will only increase.
Justice Thomas’ Endurance
When Justice Breyer departs the court, Associate Justice Clarence Thomas will stand out as the court’s most senior Justice. It’s true that Thomas has been the senior Associate Justice (confirmed 1991) since Anthony Kennedy’s retirement in 2018, but Ruth Bader Ginsburg (1993) and Breyer (1994) weren’t all that far behind Thomas in 2018.
When Breyer leaves, Thomas will remain as the last Supreme Court Justice to began his service in the 20th Century and before September 11th, 2001. He’ll be the last remaining member of the Rehnquist Court, which remained unchanged from 1994-2005.
Thomas’ tenure is only the 15th longest on the court, but if he remains for the rest of the Biden Administration, it will be the tenth longest. The longest tenure on the court is nearly thirty-seven years by William O. Douglas. Thomas is ten years younger than Breyer and could surpass Douglas in a little more than six years although he may start to face pressure to retire when a Republican President next comes to power.
However, Thomas is going to be hard to replace. Even among the court’s conservative justices, no one matches his steadfast textualism. One factor working against a pressure campaign is that he is despised by the left as the country’s most powerful black conservative. Given that, the desire to own the left may overcome strategic considerations and avoid the sort of pressure campaign that Breyer faced so that Thomas will only leave the court when he’s good and ready.
*President Obama’s appointment of sixty-four year old Merrick Garland was meant as a sop to the GOP Senate Majority to get a nominee confirmed by offering someone who would not enjoy a superlong incumbency on the court, so was an exception to the rule about only wanting to nominate justices who will have a long tenure.