Supreme Court Justice Stephen Breyer’s upcoming retirement is throwing a curveball into both parties’ midterm plans, injecting a highly partisan issue into an already combustible election cycle.
Supreme Court nominations have been the subjects of some of the most bitter fights between Democrats and Republicans in recent years, and Democrats are still smarting from the battles over former President Trump’s three conservative additions to the bench. Breyer’s retirement and his replacement won’t change the ideological makeup of the court, but it gives President Biden the opportunity to leave a long-lasting mark on the court — and his party a positive message to carry into November.
“Look at what the conversation was as recently as yesterday. We’re talking about inflation in practically every sector of Americans’ lives. We’re talking about supply chain issues, rising violent crime, what’s going on at the border, obviously Russia and Ukraine. All of these things, bad for Biden,” said GOP strategist Doug Heye.
“So he desperately needed a lifeline. And this is perhaps the best that he could get because this should galvanize Democrats.”
While Breyer is considered one of the liberal justices on the bench, some Democrats have been calling for him to step down so Biden could fill the seat with a younger liberal justice that can be confirmed with a Democratic majority in the Senate.
Senate Majority Leader Charles Schumer (D-N.Y.) suggested in a statement on Wednesday that whoever Biden nominates will be confirmed quickly this year.
“President Biden’s nominee will receive a prompt hearing in the Senate Judiciary Committee, and will be considered and confirmed by the full United States Senate with all deliberate speed,” Schumer said.
A Supreme Court fight — even one that is over before the midterms — would likely supercharge House and Senate races across the country given Democratic furor over recent Republican maneuvering on the court.
Senate Minority Leader Mitch McConnell (R-Ky.) famously refused to consider a nominee from former President Obama when a vacancy arose in 2016, leaving the seat open until former President Trump was inaugurated and leading to Justice Neil Gorsuch’s confirmation. When the late Justice Ruth Bader Ginsburg died less than two months before the 2020 race, McConnell raced to install Justice Amy Coney Barrett on the court rather than wait until after the presidential election.
In addition, both parties are still angry about the nomination battle surrounding Justice Brett Kavanaugh. And the Supreme Court is squarely in the spotlight, taking on cases this term about abortion, gun rights and the separation of church and state.
Democrats, noting an anticipated loss of at least one chamber of Congress, are pressing Biden and the Senate to move with urgency while they still have unified control in Washington.
“The U.S. Senate must now act swiftly to confirm President Joe Biden’s choice to replace Justice Breyer,” said Center for American Progress President Patrick Gaspard.
Even some Republicans concede that while the fight is not a panacea for Democrats contending with inflation, supply chain crunches, an ongoing coronavirus pandemic and more, a debate on a Supreme Court vacancy helps Democrats far more than the GOP.
“This gives them something proactive that they can talk about to their base that has been dispirited with the administration at a time when the American people think the country’s on the wrong track,” Heye, the Republican strategist, said. “That still doesn’t change daily life for every American that is paying more at the pump and then they’re paying more wherever they go after they pay for the pump. But this does give them a way to at least partially change the conversation.”
A successfully confirmed Supreme Court nominee could be a big win for Biden with key portions of his base, particularly after disappointing legislative setbacks in the Senate.
Black Americans helped buoy Biden during the 2020 primary and are key to his influence in the Democratic Party but recently have expressed dismay over Democrats’ inability to pass voting rights reforms in Congress.
But now, Biden has a chance to fulfill one of his promises to them on the campaign trail: to nominate the first Black woman to the Supreme Court. Speculation is growing that Ketanji Brown Jackson, a former Breyer clerk who was recently confirmed to the D.C. Circuit Court of Appeals, could get the nod. And if that promise is fulfilled, Democrats suggest it could produce a groundswell of enthusiasm for Biden again.
“I think it would be political malpractice if the person is not confirmed when we have a majority [in the] Senate because we should be taking lessons from Mitch McConnell and his position or his strategy in confirming the last Supreme Court justice,” said Democratic strategist Antjuan Seawright.
Breyer’s retirement also comes ahead of what is anticipated to be a bitter Supreme Court fight over abortion.
The high court will soon hear a case over a Mississippi law that essentially bans abortions after 15 weeks of pregnancy, a direct rebuke of the 1973 Roe v. Wade decision.
Both abortion rights and anti-abortion groups were quick to react to the news of Breyer’s retirement, using the development to galvanize their respective bases.
“The news of this vacancy comes as we await the Court’s ruling in Dobbs this summer followed by the pivotal midterm elections,” said Marjorie Dannenfelser, president of the anti-abortion Susan B. Anthony List. “The stakes have never been higher in the fight to secure legal protections for unborn children and return the issue back to the people to decide through their elected representatives, not unelected judges.”
Planned Parenthood used Breyer’s retirement to slam federal court decisions to move abortion rights to the state level, urging Biden to swiftly appoint a nominee.
“These threats show no signs of slowing down, and our Supreme Court should reflect our values and defend our constitutional rights,” said Alexis McGill Johnson, president and CEO of the Planned Parenthood Federation of America.
Republicans have more limited avenues for attack on the vacancy left by Breyer, though several have already suggested the GOP’s playbook will rely on painting Biden’s ultimate nominee as extreme.
“The Democrats know they will lose the Senate majority in 2022. I predict that Chuck Schumer and whoever is running the White House will force all Democrats to obey and walk the plank in support of a radical liberal with extremist views,” Sen. Rick Scott (R-Fla.), the chair of the Senate GOP’s campaign arm, said in a statement.
Republicans also note that news of Breyer’s retirement comes more than nine months before Election Day and that even a contentious Supreme Court fight could fade from national attention before voters head to the polls.
“I think it’s an opportunity for a reset for Biden,” said GOP strategist Bob Heckman, adding, “I’m not sure that nine months from now it’ll be at the top of the mind of voters.”
Still, Republicans are underscoring the importance of the midterms, pointing to the upcoming battle over Breyer’s replacement.
“Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court,” Sen. Lindsey Graham (R-S.C.) said in a statement.
The Democratic Senatorial Campaign Committee (DSCC) released their own statement following the news, underscoring the role the court will play in various policy debates.
“This vacancy reinforces the stakes of this year’s election and why we must defend and expand our Democratic Senate majority with the power to confirm Supreme Court justices,” said Sen. Gary Peters (D-Mich.), the chairman of the DSCC. Protecting Roe v. Wade, coverage for pre-existing conditions, workers’ rights and so many other issues central to the lives of every American are all on the line. And in 2022, voters will make their voices heard by standing with Senate Democrats.”
With all that in mind, Democrats say it’s important not to overplay their hand.
The country is still facing record-high inflation, and the omicron variant of the coronavirus is ravaging several states even as it dips in others. And while a Supreme Court fight is beneficial for Democrats, strategists say those kitchen table issues still need to be a priority.
“While the Supreme Court affects everyone’s lives every day, voters don’t necessarily recognize that, and what voters make clear time and time again is ‘you need to focus on the issues affecting me and my pocketbook, my family, every single day,’” said Democratic consultant Tyler Law. “And if we are seen as not focusing relentlessly on that, we’re gonna get punished.”