What’s next in the Senate, now that Justice Stephen Breyer is stepping down.
In the wake of reports that Justice Stephen Breyer is retiring, the Senate now has another major agenda item to contend with in the coming months: a Supreme Court confirmation process.
That task joins a long list of priorities: Democrats have to pass a bill on government funding by February 18 in order to avoid a government shutdown; they are trying to complete work on an update to the Electoral Count Act and a bill aimed at increasing the US’s competitiveness with China in the next few weeks; and they hope to restart talks on their massive climate and social spending initiative, the Build Back Better Act, in time to pass at least part of it before the 2022 midterms.
That’s a lot. Fortunately for Democrats, seating a new justice on the Supreme Court could be the easiest of their many tasks.
Here’s how the process would work logistically: First, President Joe Biden will have to nominate an appointee to take Breyer’s seat. Once he does, the process can move relatively quickly in the Senate — think back to Justice Amy Coney Barrett’s expedited confirmation in October 2020. Former President Donald Trump announced Barrett’s nomination on September 26 and the Senate confirmed her on October 26. This was one of the fastest confirmations in history — typically, the process takes a little over two months on average — but there’s no reason Democrats can’t replicate Republicans’ strategy here.
Because Supreme Court nominees only need a simple majority to be confirmed, Democrats are able to unilaterally move through any appointment with their 50-person majority and the help of Vice President Kamala Harris’s tie-breaking vote. The main issue they’ll have to address is maintaining party unity on the nominee, since they’d need every vote in order to confirm a justice if Republicans don’t support the pick.
Senate Majority Leader Chuck Schumer (D-NY) and Senate Judiciary Committee chair Dick Durbin (D-IL) have yet to provide details about when this process could get underway, though both have said they intend to handle it quickly once it does. As CNN reported, Democrats are expected to weigh a new nominee before the end of the Supreme Court’s term this summer.
“President 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,” Schumer said in a Wednesday statement. There’s plenty of precedent for Democrats to do just that.
There’s precedent for a speedy confirmation process
Lawmakers need look no further than the last Supreme Court confirmation process for an example of how quickly the Senate is able to approve a nominee if the votes are there.
In the fall of 2020, Republicans were able to hold a confirmation hearing for Justice Amy Coney Barrett within a few weeks of her nomination. It’s a process Democrats could well emulate for whoever Biden decides to nominate, holding a confirmation hearing, committee vote, and Senate vote in quick succession.
Because of how narrow their majority is, and the even split of Democratic and Republican lawmakers on the Judiciary Committee, there could be some extra steps needed to advance Biden’s nominee to a floor vote if the committee’s approval vote ends in a tie. Essentially, Schumer could bypass the tie in the committee, and hold a procedural vote regarding floor consideration of the nomination, which can pass with a simple majority. But even with that step, the confirmation process is still one that could move pretty quickly.
“There’s nothing that technically stops the Democrats from moving at breakneck speed to confirm a successor to Justice Breyer,” says George Washington University political science professor Sarah Binder.
The vote hinges on Democratic unity
As has been the case with numerous bills, a vote on the Supreme Court nominee will depend on Democratic unity since the party has such a narrow majority.
All 50 members would need to back the nominee in order for them to advance if no Republicans vote in favor. So far, Democrats have stuck together on most of Biden’s appointees, with the exception of a handful of picks including former Office of Management and Budget nominee Neera Tanden, who Sen. Joe Manchin (D-WV) opposed.
Any opposition from moderate Democratic lawmakers like Manchin and Sen. Kyrsten Sinema (D-AZ) to this Supreme Court pick could potentially derail the nominee, though this outcome seems unlikely given how united Democrats have been on Biden’s choices up to this point.
Last year, the Senate confirmed 40 of Biden’s judicial nominees, the most any recent president has seen in their first year. Those nominees brought more diversity to the bench, and included a number of women, people of color, and public defenders.
Biden previously pledged to name the first Black woman to the Supreme Court, a promise that multiple lawmakers pushed for him to deliver on with this nomination. As Vox’s Ian Millhiser has reported, one of the potential contenders is Judge Ketanji Brown Jackson, who was confirmed to the DC Circuit Court last year. Jackson was confirmed by a 53-44 majority at the time, a sign that she would likely have solid support if she were the Supreme Court nominee as well.
Senators would ideally be able to advance a Supreme Court confirmation while also working on legislative priorities like the Build Back Better Act. But it’s likely that the confirmation process will delay action on bills because of how much of senators’ time and focus it will draw. As was the case with Trump’s impeachment trial in January 2021, expect lawmakers to say they’ll be able to “walk and chew gum at the same time.” In reality, however, there will probably be trade-offs, especially given that lawmakers are likely to make getting a new Democratic nominee onto the Supreme Court a main priority.