Court Justice Law

Supreme Court confirmation fight to make history in 50-50 Senate

Democrats’ razor-thin majority will have to make history to confirm Stephen Breyer’s successor to the Supreme Court. A 50-50 Senate has never done it before.

As the White House considers candidates to replace the retiring justice, they’ll need a judge who is guaranteed to garner support from every member of the Democratic caucus. That raises the stakes for the confirmation battle, but also provides some comfort for Democrats: as long as they stay unified, Republicans can’t stop Breyer’s successor from being confirmed. Republicans scrapped the 60-vote threshold on high court nominees in 2017.

It will be President Joe Biden’s first opportunity to fill a Supreme Court vacancy. Biden promised that he would nominate a Black woman, should an opening on the court arise, but it could take weeks before the White House names a final candidate. Breyer is expected to serve through the end of his term, but Democrats are looking to move as quickly as possible to confirm his replacement, aides said. Democrats may explore confirming his replacement before his term is over, but delay the succession until after he leaves.

Senate Majority Leader Chuck Schumer vowed Wednesday that 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.”

The two Democrats that party leaders will watch most closely are Kyrsten Sinema of Arizona and Joe Manchin of West Virginia, both of whom opposed weakening the Senate filibuster for elections and voting reform legislation last week. And Manchin has rejected Biden’s domestic climate and social spending legislation. Yet on most nominees, including lifetime judicial positions, they’ve been reliable votes for Biden.

Among the contenders liberal groups are pushing to fill the seat is Ketanji Brown Jackson, a circuit judge on the United States Court of Appeals for the District of Columbia Circuit. She was confirmed last year in a 53-44 vote, with support from both Manchin and Sinema.

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