As we reported earlier, liberal Supreme Court Justice Stephen Breyer made his plan to retire official and he announced it in the company of Joe Biden from the White House on Thursday afternoon.
During his comments, Joe Biden praised Breyer and reiterated his promise to nominate a black woman in Breyer’s place.
Someone had leaked the news the day before, reportedly before Breyer wanted it out. The left has been pressuring Breyer to get out while Biden is in office, so that he could appoint a nominee. The timing of this is another indication that they think they’re going to get wiped in November in the midterms. They know they would face a potentially tougher time getting a nominee past the Senate if the Democrats lose any more seats. Right now, it’s a 50-50 Senate.
Senate Minority Leader Mitch McConnell (R-KY) pointed out that the Senate was even and that Biden didn’t have the mandate to go radical, warning Biden not to pick a far-leftist as a replacement.
“Looking ahead — the American people elected a Senate that is evenly split at 50-50. To the degree that President Biden received a mandate, it was to govern from the middle, steward our institutions, and unite America,” McConnell continued. “The President must not outsource this important decision to the radical left. The American people deserve a nominee with demonstrated reverence for the written text of our laws and our Constitution.”
However, Biden has governed from the left and has been in the pocket of the radical left. So expect that his nominee is going to be someone to the left of Breyer.
If they put forth a radical activist, they could potentially lose Sen. Kyrsten Sinema (D-AZ) or Sen. Joe Manchin (D-WV). While Manchin and Sinema have previously gone along with Biden appointees, Sinema made clear that she wasn’t just going to be a rubber stamp.
“As with all nominees and as I did during the 2020 Supreme Court nomination, I look forward to fulfilling my constitutional duty to provide advice and consent by thoughtfully examining the next nominee based on three criteria: whether the nominee is professionally qualified, believes in the role of an independent judiciary, and can be trusted to faithfully interpret and uphold the rule of law,” Sinema released in a statement.
As we previously noted, if McConnell thought the nominee too far left, he could potentially leave the nominee in limbo not voting the person out of the Judiciary Committee. Right now, the Committee is split so Democrats would still need to have one Republican to get the nominee out of the Committee to the floor.
There is a way around that, even if it’s not voted out of Committee, but there’s a problem there too.
A majority of the Senate—51 votes, typically—can then put debate about the issue on the calendar for the next day. But that’s the last easy part. When the potential pick comes to the floor again, it’s not as a nomination. At that point, it’s a motion to discharge, a cloture motion that requires 60 votes. In other words, 10 Republicans would have to resurrect the nomination of someone already blocked in the Judiciary Committee.
It would then go back to needing 60 votes, and they’re not going to get 10 Republicans.
So, depending on who the nominee is, this promises to be an interesting fight. The question is how much does Biden want to put on the line to put in a radical? And would he do that, risk a fight right before the midterms? He’s already shown that he’s a creature of the left and doesn’t have a lot of judgment in that area, so I wouldn’t put it past him.
But there’s also another aspect of this resignation from Breyer. Breyer said he would continue in his position until his successor is nominated “and confirmed.”
“I intend this decision to take effect when the Court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed,” Breyer told Biden in his official letter.
So, if McConnell were to block the nomination, Breyer could decide not to leave at the end of the term as he planned.
Expect a lot of gamesmanship on the way.
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