It wasn’t long after the news broke about Supreme Court Justice Stephen Breyer’s retirement that I started hearing from preemptively discouraged progressive readers. “Sure, President Joe Biden will nominate someone,” they said, “but what makes anyone think his choice will be confirmed?”
Let’s note at the outset that much of this is a little premature. Breyer hasn’t formally announced his decision, and while there are obvious favorites, the White House hasn’t said whom Biden will pick to fill the vacancy.
But those concerned about the fate of Biden’s eventual nominee should keep a couple of things in mind.
First, barring some kind of dramatic change in the Senate’s structure — a death, a resignation, a party switch, etc. — Republicans won’t be able to block the president’s choice, even if they want to. In early 2017, then-Senate Majority Leader Mitch McConnell executed the so-called “nuclear option” and made it so that senators can confirm Supreme Court nominees by majority rule.
With this in mind, if the Senate Democratic conference sticks together, Biden’s choice for the high court will almost certainly be confirmed.
Second, it’s not unreasonable to wonder whether the Senate Democratic conference will, in fact, stick together, especially after Sens. Joe Manchin and Kyrsten Sinema stood in the way of Democratic plans on voting rights and the Build Back Better agenda.
But this Washington Post report rings true:
It still seems likely both will ultimately vote for whoever Biden nominates. Manchin and Sinema have both supported his lower court picks, including one that is high on Biden’s short list for the high court: Judge Ketanji Brown Jackson. But their presence could also impact who gets picked in the first place. Biden has already promised he will nominate a Black woman, limiting the field of prospective justices. Let’s not forget that over the course of the last year, Manchin and Sinema have balked at exactly zero judicial nominees from the Biden White House. Literally, none. What’s more, while Sinema has taken inflexible positions on priorities such as tax breaks and preservation of the filibuster, she’s made no public demands about the courts. Let’s also not forget that the senator, facing unwelcome pressure from her own party in Arizona, has a strong incentive to back Biden’s choice — especially if he nominates a judge she’s already voted to confirm before — as a way to rebuild support among her own ostensible allies. This is not to say the coming confirmation process will be effortless. If recent history is any guide, there will be plenty of drama, attack ads, and contentious questions during Senate Judiciary Committee hearings. But as things stand, those assuming Biden’s prospective nominee faces long odds probably have this backwards.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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