Breyer To Retire

Justice Stephen Breyer, who is 83 years old, will retire this summer at the end of the Supreme Court's current term.  A heated Supreme Court confirmation battle in the middle of the heated midterm elections will put both parties in a bind.

At first glance, one of the three liberals retiring wouldn't seem to make much of a difference.  But Breyer occasionally surprises people by voting with his conservative colleagues.  Justices Kagan and Sotomayor do not.  They're ideologues.  I fully expect Joe Biden will appoint another radical ideologue, moving the court somewhat to the left.

He has promised to appoint a black woman to the Supreme Court, and three names immediately come to mind:  Kristen Clarke, Ketanji Brown Jackson and Kamala Harris.

If Biden nominates a far-left extremist, will Joe Manchin, Kyrsten Sinema or any liberal senator up for reelection this year dare to resist the radical impulses of their president and party? 

And what about Republican senators?  Every conservative voter will demand Republicans fight any radical leftist nominated by Joe Biden. 

But some Republican senators still cling to the fantasy that they should acquiesce to qualified presidential appointments unless the nominee has serious ethical issues.  Chuck Schumer abandoned that standard years ago, arguing that judicial philosophy was the most important consideration.

The last time a liberal was appointed to the Supreme Court was in 2010 when Barack Obama nominated Elena Kagan.  Five Republican senators voted for her.  Three Republicans voted last year to confirm Judge Ketanji Brown Jackson to her current position on the D.C. Circuit Court of Appeals.

When Mitch McConnell got the horrible news that Justice Scalia had passed away, he announced, without consulting his Republican colleagues, that the vacancy would be filled by the winner of the 2016 presidential race, whoever that was. 

The reason McConnell did that was because he knew there were Republicans in his caucus who would vote for Obama's nominee no matter how left-wing the nominee was.  (By the way, Obama's "moderate nominee" was Merrick Garland, Joe Biden's current attorney general – the guy who ordered to the FBI to spy on parents at school board meetings.) 

I have personally heard McConnell say that after he made his announcement regarding the Scalia seat, he got calls from Republican senators who were upset that he wasn't allowing Obama to fill the vacancy. 

If every Democrat senator supports Biden's nominee and every Republican senator opposes the nominee, she will still be confirmed with the tie-breaking vote of the vice president.  And her tenure on the court will be tainted as the only Supreme Court justice ever confirmed by a single, tie-breaking vote. 

But I suspect that won't be an issue because some Republicans are still playing by the old rules.