Supreme Court battle could wreak havoc with Biden’s 2020 agenda

Liberal activists fearful of Democrats losing control of the Senate are pushing for stalwart liberal Justice Stephen Breyer to retire this year, but Democratic senators don’t share their enthusiasm, knowing a fall confirmation battle could quickly become a partisan circus.

Senators say it’s entirely up to Breyer, who is 82 years old, to make a decision on when to step down from the high court. They aren’t spoiling for another bruising Senate confirmation fight, which could put President Biden’s legislative agenda on hold and further fuel partisan tensions in the chamber.

“I am not going to pressure the justice in any way. He can make up his own mind,” said Senate Judiciary Committee Chairman Dick Durbin (D-Ill.).

Durbin, however, said the Senate would prioritize a Supreme Court confirmation process if Breyer or any other justice vacated his or her seat.

“We can handle the issues as they arise and that’s one of the most important, so it will be a priority,” Durbin added.

Sen. Elizabeth Warren (D-Mass.), a leading progressive, didn’t want to touch the subject of Breyer’s possible retirement.

“Oh, I have no comment on that. None,” she said.

Sen. Patrick Leahy (D-Vt.), a senior member of the Judiciary Committee, argues that Democrats could ram Biden’s nominee through the Senate as quickly as Republicans moved Justice Amy Coney Barret in October, when she was confirmed a mere 30 days after her nomination.

“We should be able to move it quickly,” he said, arguing that then-Senate Majority Leader Mitch McConnell (R-Ky.) was willing “to break every rule” to get Barrett on the high court by the Nov. 3 elections.

But that would spark Republican retaliation, and GOP senators could use a variety of procedural tools to exact revenge, from denying quorums during votes on nominees — including a potential Supreme Court nominee — to employing other dilatory tactics.

Senators keenly remember the chaos and bitterness that engulfed the chamber during the last two confirmation battles over Justice Brett Kavanaugh and Barrett, which stalled the legislative agenda in the fall of 2018 and 2020 respectively.

Conservatives are vowing to drag out a fight over Biden’s nominee for as long as possible.

“As with any Supreme Court vacancy, you could expect it to tie up the White House and the Senate for weeks, and at a crucial time for Biden and his agenda,” said Carrie Severino, president of the Judicial Crisis Network.

Severino said her group will focus its political pressure on Democratic moderates such as Sens. Joe Manchin (W.Va.) and Kyrsten Sinema (Ariz.), as well as Democrats up for reelection next year such as Sens. Mark Kelly (Ariz.) and Raphael Warnock (Ga.).

“JCN will spend whatever it takes to inform the people of states like West Virginia, Arizona, and Georgia that their Senators have a choice when it comes to judges: stand with the people of their states, or stand with liberal dark money groups that advocate for legalizing all drugs, defunding the police, taxpayer funded late term abortion, and other extreme policies that would never pass through Congress,” Severino said.

The prospect of a fall battle over the Supreme Court looms as more and more of a headache for Senate Majority Leader Charles Schumer (D-N.Y.) as legislative priorities continue to pile up on the calendar.

Bipartisan negotiations over an infrastructure bill that originally had a Memorial Day deadline continue to drag on going into the July 4 recess.

Negotiations over police reform legislation that had an end-of-June deadline not so long ago now appear to also be headed into July.

And the biggest item of all on the Democratic to-do list, passing a Senate budget resolution to pave the way for a second reconciliation package, which would need only Democratic votes to pass, still needs to be done.

Schumer hopes to take up the budget resolution in July, but that means most of the work on the reconciliation package will happen in September or August.

Senate Budget Committee Chairman Bernie Sanders (I-Vt.) only last week circulated his initial proposal to pass a whopping $6 trillion reconciliation bill. Putting together a multitrillion-dollar infrastructure spending package amidst many Democratic disagreements over what should go into the package will likely take months.

Those priorities would get less attention if the Senate is wrapped up in a Supreme Court confirmation battle. Last fall’s clash over Barrett brought coronavirus-relief discussions to a standstill before Election Day.  

“The Supreme Court nomination would definitely take over for at least a time,” said Steven S. Smith, a professor of political science at Washington University in St. Louis who has written extensively about partisan conflict in the Congress.

But Smith thinks the concerns of a court fight completely tying up the Senate are “off target” because of Democrats’ ability to end debate on the Senate floor with only 50 votes and Vice President Harris breaking a tie.

He said Biden’s choice of a nominee would weigh heavily on whether the process goes smoothly with minimum disruption to the broader agenda.

“The right nominee could clear the process very quickly. Let’s say it’s an appeals court judge who in the not-too-distant past had the background check and didn’t have a lot of problems in the Senate confirmation, the preliminaries could be disposed of very quickly, we’re talking about weeks, not months,” Smith said.

“The question is whether the wrangling over the nominee will be a distraction. That’s hard to predict because we don’t know who the nominee is,” he added. “My working assumption is that Biden would be very cautious, that he would nominate someone he would have every reason to think would be no problem for Senate Democrats.”

“And he would do his homework with the few who might give him some trouble,” he added.

But while a Supreme Court fight in September or October could freeze Biden’s legislative agenda, the prospect of a court battle in an election year isn’t appetizing either.

The messy 2018 battle over Kavanaugh was followed by the loss of four Senate Democratic incumbents in that year’s midterm elections: former Sens. Claire McCaskill (D-Mo.), Joe Donnelly (D-Ind.), Heidi Heitkamp (D-N.D.) and Bill Nelson (D-Fla.).

Former President Trump’s nomination of Barrett in September gave the beleaguered incumbent a wind at his back heading into the 2020 elections. Moderate Sen. Susan Collins’s (R-Maine) vote against the conservative nominee helped her standing with independents at home, and she sailed to a resounding reelection victory in November.

Progressive activists, however, argue the future composition of the court is the most important consideration and one that could have an impact on law and public policy for decades to come.

One of the groups that has been most outspoken in calling for Breyer’s retirement is Demand Justice, which is led by Brian Fallon, a former senior aide to Schumer and 2016 Democratic presidential nominee Hillary Clinton.

Fallon last week pointed to comments by McConnell, who claimed he would not give a Biden Supreme Court nominee a confirmation hearing or vote in 2024 if Republicans took back control of the Senate, warning that if Breyer further delays his retirement it “could end in disaster.” 

Nan Aron, the president of Alliance for Justice, another influential progressive advocacy group that works on Supreme Court-related issues, on Monday predicted that Breyer will think carefully about the potential consequences of staying on the court while in his 80s when Republicans have a strong chance of recapturing the Senate in 2022.

“With McConnell threatening never to confirm a Biden Supreme Court nominee, it’s clear that by not stepping down — if the Republicans took over the Senate and then Breyer left the court, he’d be setting a legitimacy crisis for the court,” Aron said.

She said “given how close the Senate is” and Biden’s strong approval rating, “Justice Breyer would want to consider various options now.”

“He has given speeches on the legitimacy of the court. I think he’d be disappointed if he were to set up a legitimacy crisis for the court by waiting too long,” she added.