WASHINGTON — The retirement of Stephen Breyer sets the stage for another heated Supreme Court confirmation battle in a divided Senate. But despite expectations, the nomination might not be very dramatic at all.
The razor-thin Democratic majority in the Senate has famously failed to come together on huge issues like the Build Back Better Act and overriding the filibuster to pass voting rights reforms. Republican opposition has been consistently high to unanimous.
But on judicial nominees, it’s a different story. Republican opposition remains high, but Democrats have moved in harmony to move President Joe Biden’s judicial nominees forward at a rapid pace. Confirming judges has been the one area where Senate Democrats have consistently unified. Not a single Biden judicial nominee has been blocked.
Even former president Donald Trump — who nominated three current justices — at times faced blowback from his own party over judicial nominations. Republican Sen. Tim Scott blocked a US Circuit Court nominee because of the judge’s past comments about race. Louisiana Sen. John Kennedy told a doomed Trump nominee “just because you’ve seen My Cousin Vinny doesn’t qualify you to be a federal judge.”
Biden has faced no such humiliations. Democrats confirmed 42 judges during his first year in office, outpacing the confirmation rates of any recent president. That is partly because Republicans changed the rules midway through Trump’s term to speed up the nomination process. But it is also partly because Democrats have worked together to move Biden’s nominees ahead.
The Senate is split 50-50, but Democrats hold the majority because Vice President Kamala Harris decides the tie-breaking vote. Any single Democrat, then, has the power to swing a vote. Sens. Joe Manchin and Kyrsten Sinema have used this power to great effect in legislative battles, but neither has done so when it comes to nominations.
The most controversial Biden nominee may have been Jennifer Sung. Republicans were angered by her previously signing of an open letter calling Supreme Court Justice Brett Kavanaugh “intellectually and morally bankrupt.” But it didn’t matter. Sung did not receive a single Republican vote, but Democrats stuck together and confirmed her to the 9th Circuit Court of Appeals in a tight 50–49 vote.
Up until 2017, Senate rules required 60 votes to confirm a Supreme Court justice. Republicans nuked that higher threshold to confirm Neil Gorsuch, and tight votes along mostly partisan lines have quickly become the norm.
“It’s a new ballpark for Supreme Court nominees,” Brookings Institution senior fellow Sarah Binder said. “The terrain here is majority rule. And Democrats on judges have been remarkably on the same page.”
Biden also has a chance of winning over some Republican votes. Sen. Susan Collins has voted for every Democratic nominee to the Supreme Court before her. Her one "no" vote was to a Trump nominee, Amy Coney Barrett. Although a number of recent nominations to the court — specifically the decision from then–Senate majority leader Mitch McConnell not to hold hearings for nominee Merrick Garland in 2016, and the contentious Kavanaugh process — have been complicated and vicious, a number of recent Supreme Court justices haven't been. Barrett's confirmation was little in doubt once announced. Republicans held a majority of Senate votes like Democrats do now.
Former Judiciary Committee chair Lindsey Graham is on record as saying qualified nominees should be approved and voted to confirm both Obama nominees. Graham is already predicting the success of the next Supreme Court nominee.
“If all Democrats hang together — which I expect they will — they have the power to replace Justice Breyer in 2022 without one Republican vote in support,” he said in a statement. “Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court.”
Collins and Graham are the only current Republicans who voted for President Barack Obama’s Supreme Court nominees. But Sens. Lisa Murkowski and Mitt Romney have consistently proven to be swing votes on politically divisive issues.
The debate will likely get underway soon. Senate Majority Leader Chuck Schumer released a statement Wednesday saying Biden’s nominee will receive a prompt hearing and will be “confirmed by the full United States Senate with all deliberate speed.”