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Schumer Eyes 30-Day Timeline for Confirming Breyer Replacement

Jan. 27, 2022, 3:39 AM

Senate Majority Leader Chuck Schumer wants to confirm President Joe Biden’s choice to replace Justice Stephen Breyer on an expedited timeline that would take only weeks to finish.

Schumer plans to move Biden’s nominee through the process on a timetable similar to that used by Republicans to confirm Justice Amy Coney Barrett in 2020, according to a person familiar with his plans. She was confirmed 30 days after then-President Donald Trump made the nomination.

“We want to move quickly,” Schumer told reporters in New York. “We want to get this done as soon as possible.”

The 11 Democratic members of the Senate Judiciary Committee are tentatively planning to hold a video call on Thursday afternoon to discuss strategy on the high court nomination, according to a person familiar with the matter.

Democrats will be able to act fast and confirm a nominee on a simple majority vote thanks to a change in the chamber’s rules made by Republicans when they last held control and were trying to get Trump’s earlier Supreme Court picks to the bench.

That still will require holding together the fragile Democratic voting coalition in the 50-50 Senate through what’s expected to be an onslaught of attacks on the nominee from Republicans and their outside allies.

While moderate Democrats Joe Manchin of West Virginia and Kyrsten Sinema of Arizona have held up Biden’s economic agenda and thwarted Democrats’ drive to overhaul voting rights, they’ve joined in the unanimous Democratic support for Biden’s nominees to lower courts.

“I take my constitutional responsibility to advise and consent on a nominee to the Supreme Court very seriously,” Manchin said in a statement. “I look forward to meeting with and evaluating the qualifications of President Biden’s nominee to fill this Supreme Court vacancy.”

Republicans have broadly opposed Biden’s court picks, but some have drawn GOP support.

Biden has pledged to appoint the first Black woman to the Supreme Court. One of the leading candidates for Breyer’s seat, Judge Ketanji Brown Jackson, won Senate confirmation last June to the powerful federal appeals court in Washington on a 53-44 vote.

Three GOP senators supported Jackson: Susan Collins of Maine, Lisa Murkowski of Alaska and Lindsey Graham of South Carolina.

Graham, who supported President Barack Obama’s first two Supreme Court nominees, has not indicated how he would vote on a Biden Supreme Court pick.

“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,” Graham said in a statement. “Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court.”

The situation is a result of the increasingly rancorous partisanship surrounding judicial nominations in the last decade. In 2013, the Senate under Majority Leader Harry Reid jettisoned the filibuster rule for presidential nominees other than the Supreme Court as Republicans repeatedly blocked Obama’s picks.

The 60-vote threshold required to advance Supreme Court nominees remained intact until 2017, when Democrats filibustered Trump’s first nominee to the high court, Neil Gorsuch. The Senate, then under Republican control, voted to make Supreme Court nominations subject to a simple majority.

That allowed Gorsuch to be confirmed 54-45. Trump’s second nominee, Brett Kavanaugh, was confirmed by an even narrower 50-48 vote.

Although Breyer is likely to remain on the court through the end of its term in June and until a successor is confirmed, the timing of his retirement will work in Democrats’ favor.

Limited Options

Senate GOP Leader Mitch McConnell, who led a Republican blockade of Obama Supreme Court nominee Merrick Garland, said last year that he’d be “highly unlikely” to let Biden fill a Supreme Court vacancy in 2024 if the GOP wins back the Senate in the November election. He refused to say what he would do if the vacancy occurred in 2023.

But with Democrats currently in control and the filibuster for high court nominees abolished, McConnell’s options for the Breyer seat are limited.

That was illustrated during confirmation of Barrett, Trump’s third nominee to the high court and one that swung the balance firmly to conservatives. Democrats used multiple procedural tactics to try to stall the vote. Yet that did little to delay the eventual 52-48 confirmation vote.

McConnell, speaking at an event in his home state of Kentucky, declined to say what Republicans would do, saying Breyer hasn’t formally announced his retirement yet.

Still, some Republicans are signaling they will put up a fight.

GOP Senator Marsha Blackburn of Tennessee, a member of the Judiciary Committee, said a majority of the country has “lost confidence” in Biden’s leadership.

“I will not stand by as President Biden attempts to fill our courts with activist judges who are beholden to progressive interests,” she said in a statement.

Senator John Cornyn of Texas, a senior Republican on the Judiciary Committee, took a swipe at the Democrats’ handling of Kavanaugh’s confirmation, which was mired in sexual assault accusations, in 2019.

“Whoever the president nominates will be treated fairly and with the dignity and respect someone of his or her caliber deserves, something not afforded to Justice Kavanaugh and other Republican nominees in the past.”

The stakes are lower than in the last several confirmation battles, given that replacing Breyer with another liberal justice would not change the balance of power on the court, where conservative justices now hold a 6-3 majority. And there are still nearly three years left in Biden’s term.

Murkowski may be the most likely Republican to back Biden’s pick. She’s up for re-election in Alaska and will likely need Democratic and independent voters on her side against a challenge from a Trump-backed Republican, Kelly Tshibaka.

Murkowski’s crossover appeal was key to her successful runs in 2016 as well as in 2010, when she lost a primary but won as a write-in candidate. She voted against Kavanaugh’s confirmation but for the confirmations of Gorsuch and Barrett.

(Updates with Judiciary meeting, in fourth paragraph.)

To contact the reporters on this story:
Laura Litvan in Washington at llitvan@bloomberg.net;
Steven T. Dennis in Washington at sdennis17@bloomberg.net

To contact the editors responsible for this story:
Joe Sobczyk at jsobczyk@bloomberg.net

Megan Scully, John Harney

© 2022 Bloomberg L.P. All rights reserved. Used with permission.

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