WASHINGTON — It’s such a testament to the breakdown of the Senate’s judicial confirmation machine that the first question many asked last week regarding the upcoming Supreme Court vacancy was whether Democrats can establish an entirely new justice on its own.
The answer is yes, if the group sticks together. And the prospect of President Biden’s eventual nominee receiving only the Democratic vote is hardly too far-fetched, given the bitter history of recent confirmation battles for the supreme court.
Judge Amy Coney Barrett, the last member of the court confirmed by the Senate, did not receive a single Democratic vote. But Republicans hold a 53 to 47 advantage and can afford to lose a colleague or two in passing her nomination just before the 2020 presidential election.
With their minimum 50-seat majority, Democrats won’t have that luxury after Biden nominates the first Black woman to the court in the coming weeks. Considering the toxic partisan atmosphere surrounding contemporary Supreme Court infighting, it’s conceivable that she could make history not only because of her gender and race, but also who she is. was first elevated to the court by a tight vote of the vice president.
It would be a far cry from the simple vote approval of many of her predecessors as recent as the 1960s. Or the 98-0 affirmation of Justice Antonin Scalia, a leading judicial conservative, in 1986. Or even the 87-9 vote in 1994 for Justice Stephen G. Breyer, a member of the court’s liberal wing who announced on Thursday that he would step down after nearly three decades. century.
The decline in Supreme Court confirmations of consensus has been rapid, and the escalation of partisan warfare has become increasingly apparent.
Deep bitterness lingered after the Democrats’ attack on Robert H. Bork in 1987; the regular deployment of films against judicial candidates on both sides began during the administration of President George W. Bush; Republican blockade of Judge Merrick B. Garland in 2016; Justice Brett M. Kavanaugh’s controversial confirmation in 2018; and the Republican Party’s tough move to bring Justice Barrett to court two years later.
With the Supreme Court deciding on so many of the most polarizing issues of the day – including abortion rights and affirmative action – neither side is willing to give in on many grounds and both show the battle scars of surname.
“It’s a sad comment on the nomination process that’s been falling apart for years,” said Senator Susan Collins of Maine, one of the few Republicans. seen as a potential backer of Mr. Biden’s pick. “If you look at the incredibly strong vote that Stephen Breyer was confirmed to, you wouldn’t see it today.”
Democrats are keen to avoid a party-line vote for whoever Mr. Biden puts forward. One of the first calls from Senator Richard J. Durbin, an Illinois Democrat and chairman of the Judiciary Committee, was to Ms. Collins, promising her any documents and assistance she received. he can offer to help her evaluate upcoming candidates.
Democrats also hope for the fact that Mr. Biden’s choice will displace liberal justice and not tip the ideological balance of the firm conservative court – and the fact that she will. is an African-American woman – will prevent Republicans from a campaign to burn the earth when they have a low win rate.
But while Republicans are promising an open assessment of the candidate, tough feelings about previous clashes confirm, most recently Justice Kavanaugh’s battle against assault allegations. sex work, never the surface.
“Anyone the president nominates will be treated fairly and with dignity and respect for the person he deserves, something that Justice Kavanaugh and other Republican candidates in the past won’t win,” said Senator John Cornyn of Texas, a senior Republican member of the Judiciary Committee, in response to Justice Breyer’s retirement.
Besides Ms. Collins, another Republican who will be in the spotlight of Democrats is Senator Lisa Murkowski of Alaska, who regularly supports the judicial nominations of Democratic presidents and is a member of the Democratic presidential nomination. The only Republican to oppose Justice Kavanaugh.
Ms. Murkowski will run for re-election this year under her home country’s new ranked-choice voting system. She has been opposed by a hardline conservative faction strongly backed by former President Donald J. Trump, who is angry with Ms. Murkowski for voting to convict him at his impeachment trial in the wake of the attack. January 6 into the Capitol. Standing up to Mr. Biden’s pick for the court could help her attract the Democratic and independent voters she may need to prevail under her state’s new election rules.
Sen. Lindsey Graham, a South Carolina Republican and former chair of the Judiciary Committee, has also deferred past Democratic presidents and voted for lower court judges and judges. that they offer.
Last year, Mr. Graham, Ms. Collins and Ms. Murkowski were the only three Republicans to endorse Judge Ketanji Brown Jackson, the forerunner of Justice Breyer’s successor, for a seat on the influential US Court of Appeals for the Special Counsel. District of Columbia. Circuit.
Supporting someone for a court seat does not guarantee support for the person himself to the Supreme Court. However, supporting someone for the high court after opposing that person for a lower court would be more difficult to reconcile, making it difficult for any of the 44 Republicans to oppose Judge. Jackson won’t support her right now. All were well aware at the time that she was a future supreme court prospect. Three Republican members were absent.
Mr. Biden could also choose Judge J. Michelle Childs of the Federal District Court in South Carolina, who has been supported by Representative James E. Clyburn, a powerful lawmaker from that state and a House Democrat. strong household. If Mr. Biden nominates Judge Childs, his selection could put pressure on Mr. Graham and another South Carolina Republican senator, Tim Scott, to back her.
But the loyalty of the state is no guarantee. Senator Michael Bennet, a Colorado Democrat, opposed the Supreme Court’s nomination of Justice Neil M. Gorsuch, a Colorado native, even though the senator introduced him at the confirmation hearing.
The case of Justice Gorsuch is instructive. Although very conservative, he is the kind of highly experienced, traditional, and qualified candidate that a Republican president might have put forward in the past with the expectation that he would gain support. strong in the Senate despite ideological differences.
But since Justice Gorsuch filled the seat blocked by Judge Garland for nearly a year and nominated by Mr. Trump, most Democrats disagree. Only three people voted for his confirmation. Only one, Senator Joe Manchin III of West Virginia, remained in the Senate; he was also the only Democrat to vote for Justice Kavanaugh.
Another potential candidate with a history of voting in the Senate is Judge Wilhelmina M. Wright of the Federal District Court in Minnesota, who was confirmed in a vote of 58 to 36 in 2016. 13 parties Republicans voted for her, and five of them are still in the Senate today. , including Senator Mitch McConnell of Kentucky, the minority leader. But a vote for a nominee in the district court is not equivalent to a vote to place one on the highest court.
Even before the nominee is known, it is clear that the outcome in the Senate will most likely be highly partisan, with the candidate receiving the fewest Republican votes – and probably not. For a country divided by partisanship and a court grappling with its image and credibility, that is not an ideal outcome.
“I really think it would be bad for the country to repeat what we’ve seen with the last two nominated candidates narrowly confirmed,” Ms Collins said. “I just don’t think it’s good for the country, nor the courts.”
https://www.nytimes.com/2022/01/29/us/politics/supreme-court-confirmation-battles.html Bitterness from Hanging Supreme Court struggles ahead of upcoming nomination