With Wednesday’s news that Judge Stephen Breyer will retire from the Supreme Court At the end of their current term, Democrats have avoided their worst-case scenario for the nation’s highest court: that Republicans would take control of the Senate before Breyer retires, allowing Senator Mitch McConnell to keep Breyer’s seat open to eventually replace the liberal judiciary with a more conservative one.
But that fear has now been replaced by another. Although Democrats are currently in control of the Senate, it is by the smallest margins: 50-50, with Vice President Kamala Harris as the deciding vote. And two members of the Democratic caucus, moderate Sens. Joe Manchin and Kyrsten Sinema, have already torpedoed several key Democrat priorities, including voting rights legislation and the Build Back Better Act. Could Manchin and Sinema also delay – or even block – confirmation of Breyer’s replacement?
Based on previous judicial confirmation votes, this is unlikely.
The Senate has been remarkably efficient in passing President Biden’s nominees for justice: In the first year of his presidency 42 of Biden’s district court and appellate court nominees were confirmed – more than any other president since John F. Kennedy.
And crucially, the Democrats stand behind these nominees. The next time a Democratic senator votes no in one of Biden’s general elections will be the first time. That means even Manchin and Sinema have a 100 percent track record of supporting Biden’s justice nominees.
Of course, there are limits to this type of analysis. First, Democratic Senators have Occasionally they skipped affirmative votes, which could be a convenient way to avoid a “no” vote. (And both Manchin and Sinema missed an above-average number of votes: seven for Manchin, 12 for Sinema.) We also don’t know if there are any confirmation votes, which Senate Majority Leader Chuck Schumer rejected because he knew the candidate he had not the voices.
But at least Manchin, Sinema, and every other Senate Democrat have been reluctant to publicly oppose any of Biden’s nominees — and with a position as important as the Supreme Court, the pressure to stick to the party line will likely be even greater.
If anything, the data shows a Republican is more likely to leave the ranks to vote Per Biden’s Supreme Court nominee than a Democrat would vote against her. Three Republicans have so far voted for a majority of Biden’s nominees for justice: Sen. Susan Collins (36 of 42), Sen. Lisa Murkowski (33 of 39, with three votes missed), and Sen. Lindsey Graham (26 of 31). , with 11 missed votes).
Collins and Murkowski are known as two of the most moderate members of the Republican caucus, and Graham is a throwback to an earlier era when the Senate withheld his nominations from the president. “Senator Graham has long held that the President has a constitutional right to choose justices of his choosing, and so long as they are qualified, they should generally be confirmed by the Senate,” Graham’s office said said in a statement last year.
Of course, the same intra-party pressures that might see Manchin and Sinema as candidates for the Supreme Court would also apply to Collins, Murkowski and Graham, so Biden should not count on their votes. (Murkowski, in particular, is up for re-election this year and faces a formidable Republican key challenge, so she may not be inclined to further anger Republicans with a pro-Biden vote.) But if Biden is looking for bipartisan support for his nominee, he is it is most likely to be found among these three senators.
Aaron Bycoffe contributed to the research.