Biden powerless to change direction of Supreme Court
Pity poor Justice Stephen Breyer. After nearly 28 years of faithful service on the Supreme Court, he has essentially been hounded off the bench by the left — not even given the simple courtesy of announcing his own departure first.
Last summer, Breyer told CNN he had not decided when he would retire and was enjoying his role as the senior liberal justice. But left-wing activists launched an unprecedented public campaign to force his retirement, taking out ads in the New York Times and parking a truck in front of the Supreme Court with a sign that read “Breyer, Retire.”
But in the end, what likely forced Breyer’s hand was President Joe Biden’s weakness. Biden’s approval is in free fall, and the odds are high that Republicans will take control of the Senate in November. As Sen. Mitch Mcconnell, R-KY., told my Post colleague Hugh Hewitt, a Republican-controlled
Senate likely would not hold a confirmation vote on a Biden Supreme Court nominee until after the 2024 presidential election. So, if Breyer wanted Biden to choose his successor, the time to announce his retirement is now.
But while Biden now gets to pick a justice, he is powerless to change the court’s ideological makeup. President Donald Trump secured a decisive 6-to-3 conservative majority that will transform the court for a generation.
For Democrats consumed with identity politics, the silver lining is Biden’s pledge to appoint a Black woman to replace Breyer. Biden has dispensed with the standard of nominating the best-qualified person, and effectively embraced affirmative action. As George Washington University law professor Jonathan Turley has pointed out, Biden has set race and gender conditions for his appointment that the Supreme Court has declared unconstitutional for admission to public collegesl.
Of course, even before Biden makes his pick, we already know how she will decide in that case. That’s because Democrats have been virtually flawless over the past three decades in appointing reliable liberals to the court. Until Trump came along, Republicans, more often than not, appointed justices who crossed over and voted with the liberal bloc on critical decisions. But there are no Democratic David Souters, Sandra Day
O’connors, Anthony Kennedys or John Robertses.
The truth is, while every Supreme Court appointment is consequential, this will be the least consequential in decades. So, Republicans should be gracious in victory, and let Democrats have their day.
Already, Sen. Josh Hawley, R-MO., is warning that if Biden “chooses to nominate a left wing activist ... expect a major battle in the Senate.” Here’s a better idea: Unless Biden appoints someone obviously unqualified, don’t pick a losing fight. Republicans should treat her graciously and present Americans with a stark contrast to the shameful way Democrats treated Neil M. Gorsuch and Brett Kavanaugh.
Indeed, it is possible that if Biden’s nominee is qualified, some Republicans will vote for her. When he appointed Ketanji Brown Jackson (rumored to be on his shortlist) to the U.S. Court of Appeals for the D.C. Circuit, three Republicans, Sens. Susan Collins (Maine), Lindsey Graham (S.C.) and Lisa Murkowski (Alaska), voted to confirm her.
Democrats are hoping a Supreme Court fight will galvanize their dispirited base. The GOP base is already energized — so there is no need to give Democrats the fight they are looking for. The best thing Republicans can do is make this confirmation a nonevent. In many ways, that’s exactly what it is.