With news breaking earlier of the (politically motivated) retirement of Supreme Court Justice Stephen Breyer at the end of the current SCOTUS term has come the inevitable speculation as to who President Biden will eventually pick as his nominee to replace Breyer, how soon will we see the fireworks start, and will he have the votes to get his nominee through the confirmation process.
With having a 50/50 Senate and Vice President Kamala Harris as the tiebreaker should it come to that (if in fact it could be done), for some it might seem obvious that yes, Biden would have the votes to confirm his nominee.
But considering the ongoing intraparty battles between the Biden administration and Democrat Sens. Joe Manchin (W.Va.) and Kyrsten Sinema (Ariz.) over the Build Back Better bill and the filibuster issue, as well as how peeved both Manchin and Sinema have let it be known they’ve become over their treatment, there are some on the left who wonder if the two Senators will decide to take their vengeance out on Biden in the upcoming SCOTUS fight.
MSNBC “justice correspondent” and radical lefist lawyer Elie Mystal, a favorite guest of Joy Reid’s, was one of many Twitter blue checks taking wild guesses at who would be nominated and how Sinema and Manchin might factor into the process:
My hot take is that Kentaji Brown Jackson is the pick and she gets Romney and Murkowski and basically obviates whatever BS Manchin and Sinema are planning to pull.
— Elie Mystal (@ElieNYC) January 26, 2022
While DC Circuit Court Judge Ketanji Brown Jackson appears to be the odds-on favorite in the left’s/media’s eyes to be selected by Biden, the reality of the matter as far as Manchin and Sinema are concerned is that in all likelihood they’ll toe the line and vote to confirm Jackson or whoever Biden picks. Remember the following:
Under current Senate rules, Supreme Court justices can be confirmed with 51 votes.
There's no 60-vote threshold.
— Sahil Kapur (@sahilkapur) January 26, 2022
Dems start off with good chance of getting Breyer's replacement confirmed. Since GOP changed filibuster rules on SCOTUS nominees in 2017, a simple majority is all that's needed.
Manchin has long deferred to presidents' nominees; Sinema tends to vote for Biden nominees
— Manu Raju (@mkraju) January 26, 2022
Also, per MSNBC legal analyst Joyce Vance, if Biden’s choice does turn out to be Jackson, Manchin and Sinema voting to confirm her would be a no-brainer considering they voted to confirm her last year:
Both Senators Manchin & Sinema voted for DC Circuit Judge Ketanji Brown Jackson, who got 53 votes when she was confirmed in 2021. It would be hard to explain voting against her now after voting for her so recently.
Republican Sens. Lisa Murkowski (Alaska), Susan Collins (Maine) & Lindsey Graham (S.C.) also voted to confirm Jackson last year.
Collins is also known for voting “yes” on Supreme Court nominees no matter who is president, so Biden obviously has some wiggle room here in the off chance either Sinema or Manchin decided to defect out of spite.
In other words, though some hardliner Republican Senators like Josh Hawley (Mo.) might try to make things entertaining along the way, in the long run, Biden’s nominee – who undoubtedly will be as “liberal” in their judicial philosophy as Breyer has been if not more so – is likely to sail through.