I was a bit bemused by some of the discussion yesterday about who President Biden might select to replace the retiring Supreme Court Justice Stephen Breyer. One of those had some people pondering – since Biden had committed to nominating a black woman – that he would name Kamala Harris. The argument was not that she was well-qualified (which as a former Attorney General of California she is), but that this will solve a pesky problem of President Biden deciding whether to drop her as his running mate in 2024.
I feel totally comfortable saying that Joe Biden will not nominate Kamala Harris to the Supreme Court. For starters, Joe Biden likes Kamala Harris. And though she’s had a few rough patches during her first year as Vice President, she’s also had strong actions. And as far as I can tell, she and Biden work well together. Further, he has said publicly that he plans to run for re-election in 2024 and that Kamala Harris will be his running mate. I sense that most people postulating how troubled she’s been are Republicans and especially those Republicans who don’t like a black woman as Vice President of the United States. (Side note: I find it hilarious that people upset at Kamala Harris being a black woman as vice president, a position that has the potential to be very important but has famously been described by former Vice President John Nance Garner as “not worth a bucket of warm spit,” are instead trying to promote her for a lifetime appointment to the Supreme Court! One of the most meaningful jobs in government.) But beyond that, the Senate is split 50-50. The deciding vote will be cast by the presiding President of the Senate, who is Vice President Kamala Harris. If she was the nominee, I’m sure she’d had to recuse herself from voting. Which means the Senate would be split 50-50. And I have no idea what the next step would be, but it does seem that that would make it extremely difficult to get her confirmed. Basically, Democrats need her sitting as President of the Senate to cast a deciding vote. Kamala Harris is not getting nominated for the Supreme Court. Another discussion centered around Joe Manchin, pondered by Democrats who feel pummeled by his vote against changing the filibuster. This theory is the concern that Sen. Manchin will move to make 60 votes needed to approve a Supreme Court Justice. I feel totally comfortable saying that Joe Manchin will not be moving to make 60 votes needed to approve a Supreme Court Justice. First of all, Joe Manchin has voted to approve every judicial nominee that President Biden has made. He’s not going to suddenly vote against a Biden judicial nominee for the very first time, when that nominee is for the Supreme Court. He’s not a far-right conservative Republican. He’s a moderate-conservative Democrat. And secondly…he can’t. It’s a Senate rule that only 50 votes are needed to approve a Supreme Court nominee. (A rule instituted, by the way, by Mitch McConnell.) And there is no way on earth that Majority Leader Chuck Schumer is going to permit a vote to change the rule. So, no, Joe Manchin is not going to move to require 60 votes to approve a Supreme Court Justice. As for the rest of it all – I have no idea what will happen next. The list of names I’ve seen all day all seem very good. I am sure Republicans will do all they can to undermine the process. At most, I suspect they’ll be able to delay the process a little. But eventually there will be a vote, and it will most certainly pass – maybe even with a with Republican votes, depending on if the nominee is someone they’ve approved for other judgeships, though I wouldn’t expect it. There is only one serious hurdle I can see. And it’s that the Senate requires a member to be present in order to vote. There’s no proxy votes or use of current, normal technology like Zoom. And with the possibility of COVID-19 infection, if even just one Democratic Senator tests positive during the voting process, they won’t get to 50 votes. However, I suspect that Majority Leader Schumer will be scheduling it all early enough that any delays won’t be roadblocks. There have also be a lot of analysts making sure that people understand that no matter how good a Biden nominee may be, it won't change the balance of the court, which will remain 6-3 for conservatives. And that's very and importantly true. But -- it misses the larger point. And that's that by having an opening now, Democrats will be able to keep the balance at 6-3, and to have it turn to 7-2. And finally, related to that, good for Justice Breyer for announcing his retirement now. Because even if Democrats hold on to the Senate after the mid-terms, there is no guarantee of that, and keeping even just one of the three liberals on the bench is not to be risked.
2 Comments
Douglass Abramson
1/27/2022 04:47:38 pm
Since actual time on the bench isn't a requirement, Earl Warren got the Chief Justice job without even being a traffic court judge, Biden should nominate Michelle Obama. Civil Rights lawyer, Constitutional Law professor, extremely popular and well known with the general public, which gives her an up over the other candidates being mentioned. That last part, in theory, should put enough extra eyeballs on the process to make her nomination impossible for McConnell to screw with, for fear of repercussions against Republican Senate candidates in the midterms. Mitch wants power even more than he wants seats on the Supreme Court. It won't happen, but I still think it would be the smart pick.
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Robert Elisberg
1/27/2022 09:32:58 pm
Honestly, I can't imagine Michelle Obama would ever want to be a Supreme Court Justice.
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AuthorRobert J. Elisberg is a political commentator, screenwriter, novelist, tech writer and also some other things that I just tend to keep forgetting. Feedspot Badge of Honor
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