If he chooses a radical to replace Breyer, it will stimulate GOP turnout in November.
by Kimberley Strassel, The Wall Street Journal, January 27, 2022
Given the alacrity with which the White House seized on Justice Stephen Breyer’s retirement, the administration is clearly banking on a confirmation fight giving the Democratic Party a midterm lift. That calculation may prove as misguided as any other so far in Joe Biden’s presidency. Especially if the president again dances to progressive demands.
Justices often give the White House an early heads-up about retirement plans with the expectation the news will remain confidential until later in the court’s term. So eager was the Biden administration to change the headlines from inflation, Covid and the president’s crummy ratings, it didn’t grant Justice Breyer that courtesy. The Wednesday news leaks force-marched Justice Breyer into penning an official retirement letter the next day.
Democrats are reveling in the distraction while assuring the media that the coming confirmation fight will galvanize its base for the midterms—especially given Mr. Biden’s vow to name the court’s first black woman. The party is also busily encouraging its pliable press to make this story—a story of a Democratic president’s nominee facing a Democratic Senate majority—all about Republicans. The narrative is that the GOP has been outwitted by a savvy White House, divided over the risks of staging an all-out assault on a minority nominee, and bitter over its powerlessness to stop a vote.
That’s one way of looking at it—one uninformed by facts, history or political reality. No doubt the Biden base is eager for a political win after the demoralizing defeats of their multitrillion-dollar spending bill and voting takeover. And no doubt Mr. Biden will get credit among progressives for fulfilling his campaign pledge and making his “historic” mark on the court.
Yet this nomination lacks the drama that animated other Supreme Court fights of recent years. Mr. Biden’s pick will make no difference to the ideological makeup of the court. He’s replacing one liberal with one liberal, while six conservative justices rule on. The nominee is also unlikely to be a surprise—or to produce surprises. Mr. Biden’s short list is necessarily very short, and one of the candidates (Judge Ketanji Brown Jackson of the U.S. Circuit Court of Appeals for the District of Columbia) weathered Senate confirmation only last year.
Mr. Biden promises a name before the end of February, and Senate Majority Leader Chuck Schumer aims to wrap up confirmation in about a month. Barring delays or flashpoints, Democrats could therefore be in April right where they are now politically—with an appointee in the rearview mirror and voters focused again on inflation, Covid and the rest. It’s difficult to see how a relatively straightforward court debate in the spring will spur the liberal base to the polls in November. Especially as, historically, the Supreme Court is an issue that drives Republican more than Democratic turnout.
The immediate risk is to Democrats—namely, that the president saddles them with another midterm liability. Mr. Biden again faces a choice. He can pick a qualified liberal in the mold of Justice Breyer or Justice Elena Kagan and take credit for putting a substantive, thoughtful jurist on the bench. Or he can bow to progressive demands that he infuse the court with a new radicalism and put forward an amped-up version of Justice Sonia Sotomayor, all anger, bluster and fiery opinions.
If it’s the latter, watch for Republicans to hang that nominee around vulnerable Senate Democrats’ necks in upcoming elections. Contrary to press reports, conservatives aren’t feeling much angst over this nomination. Republicans expected Justice Breyer to retire and knew Democrats would have the votes to confirm a replacement. Not only won’t the pick change the ideological makeup of the court; some Republicans think a more radical new justice could aid their cause by making it harder for Justice Kagan to forge compromises with the two conservative justices necessary for a majority.
Expect the vast majority of Republicans to focus more on Mr. Biden and Democrats (and what this pick says about their governance) than on the nominee herself. They are betting that even a radical Biden nominee would get unanimous Democratic support, and they are gearing up to make the likes of Arizona’s Mark Kelly and New Hampshire’s Maggie Hassan own that vote. Combined with Senate Democrats’ new promise to kill the legislative filibuster, a firebrand Supreme Court pick could further alienate independents even as it electrifies Republicans.
A Supreme Court pick is always a political risk to a president heading into an election—something the press was quick to point out when Donald Trump was mulling whom to pick to fill Ruth Bader Ginsburg’s seat in the fall of 2020. Mr. Trump largely neutralized that risk by choosing the qualified and respected Amy Coney Barrett.
But Mr. Biden already has a history of caving to left-wing demands, and all the pressure now will coming from the Demand Justice crowd to go radical. The White House was given an opening here. Will it use it wisely or double down?
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