Justice Breyer's Retirement Sets up a Major Litmus Test for Republicans

Erin Schaff/The New York Times via AP, Pool

As RedState reported earlier, Justice Stephen Breyer is reportedly retiring at the end of this Supreme Court term. With his pending retirement, Republicans are quickly splitting into two schools of thought on what to do next.


On one side, you have those who don’t believe any kind of battle is worth the trouble because Democrats will undoubtedly have the votes to confirm a replacement. On the other side, you have those who think the GOP should take a stand, make the case against whoever Biden nominates, and then go on record against them, even knowing that, in the end, they don’t have the votes.

And while I know there are those in the conservative arena I interact with who will disagree, you can put me firmly in the second camp of thinking.

Perhaps my memory is just too long, but I can’t forget how Democrats have treated the last three Supreme Court battles. Even if one wants to assume that the accusations around Kavanaugh represented a special situation that led to a highly partisan vote, that kind of behavior was hardly new. We saw the same theatrics play out during the Reagan years with the destruction of Robert Bork and later, with the attempted destruction of Clarence Thomas.

Despite that, during the Obama years, Republicans largely played nice. They handed Justice Sonia Sotomayor, who has become an absolute nightmare on the court, nine votes for confirmation. That represented nearly 25% of the GOP membership at the time. When it came to Justice Elana Kagan, Sen. Lindsey Graham actually voted to send her out of committee. She then received five Republican votes despite having no judicial experience at all.


Was that spirit of congeniality in Supreme Court confirmations carried over into the Donald Trump years? The answer is a resounding no. In fact, Democrats seemed to forget all about the past bipartisan votes, treating every open vacancy as a call to war. Justice Neil Gorsuch got three Democrat votes, including Sen. Joe Manchin and two other moderates who are no longer in office. Brett Kavanaugh, after having his life essentially destroyed, received a single Democrat vote, again coming from Manchin. Amy Coney Barrett, a very normal, mundane nominee, received zero Democrat votes in what represented a further polarization of the process.

Given all that, why should Republicans reset the deck and start handing Democrat nominees votes again? Especially when Joe Biden is almost assured to nominate a far-left ideologue? With Democrats already on the ropes, this is the time to paint a clear contrast for voters before the mid-terms. The chance to do that is with intense questioning during the hearings, but also in taking a stand with the final vote. There is no reason to help Biden and his cohorts along in this process. Let the Democrats fully own the confirmation of whoever is selected.

For Republicans, I think this sets up a rather important litmus test. Who is going to keep leaning into the delusion that we can roll the clock back to the mid-2000s vs. who understands the current political environment and what we are up against? You aren’t going to charm the left into not being insane by giving them votes on a Supreme Court nominee nor do they deserve such an olive branch. That doesn’t mean Republicans have to go scorched earth the way Democrats did with Brett Kavanaugh, but it does mean an organized, sharp opposition should take place. This should not be made a cakewalk.


Sen. Lisa Murkowski is facing a tough primary challenge heading into November’s election. She should be held accountable for how she votes. Let’s also see what Sen. Lindsey Graham does in light of his penchant for rubber-stamping Biden nominees. There are others to consider as well. Republicans may not be able to stop Breyer’s replacement, but they have a chance to make a statement. Those who choose to go along to get along after the Trump years will deserve heavy scrutiny.



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