Talking Points

The Senate battle to replace Stephen Breyer will get ugly

In a different world, Senate Republicans could let President Biden fill the vacancy created by Justice Stephen Breyer's retirement from the Supreme Court. Conservatives would still enjoy a 6-3 majority. Wednesday's news did not create a situation like the deaths of Justice Antonin Scalia and Ruth Bader Ginsburg, where the balance of the court was in play. Whatever is going to happen this year with abortion, affirmative action, and a dozen other hotly contested issues remains just as likely to happen. And the next presidential election is over two years away, so there is no Justice Neil Gorsuch repeat coming soon.

We do not currently live in that world. Breyer's own confirmation tells us this: Just nine Republicans voted against him in 1994. That would be unthinkable today. Conservative groups would run ads against the Breyer Nine during the primary season. An even starker illustration of how political norms on judicial nominations have changed: Scalia was unanimously confirmed in 1986, a little over a year before Robert Bork's rejection by the Senate set us on the current trajectory. 

But 2022 is an election year in which Democrats are going to try to use the Supreme Court and Roe v. Wade to gin up the enthusiasm of their base — which is otherwise lacking  — in an attempt to improve their chances of salvaging their narrow majorities. Republicans are going to want to keep their own voters motivated, and they are going to want their senators to do whatever they can to keep Biden's nominee off the court.

If Republicans retake the Senate in November, then-Senate Majority Leader Mitch McConnell (Ky.) can be counted on to keep a nominee in limbo through the next presidential race. Republicans have been willing to make these vacancies an election issue. They won on it in 2016, and it's not clear that it really was that important to their 2020 loss after Justice Amy Coney Barrett was confirmed. Republicans gained House seats and came within two Georgia runoffs of retaining the Senate. They will keep playing hardball until they lose.

Making the Supreme Court a supreme policymaking body on some of the most bitterly divisive issues in the country guaranteed we would get to this point. Republicans won't let a liberal nominee sail through a 50-50 Senate.