Biden gets a Supreme Court pick

Biden and Breyer

This week: The Briefing, Vol. X, Issue 5

  • Biden gets to fill a SCOTUS seat
  • Democrats increasingly panicky over Biden’s numbers
  • Two more Dem incumbents slip into unfavorable territory


Supreme Court: The retirement of Justice Stephen Breyer was expected at some point in Biden’s administration — indeed, many leftist groups had been angrily demanding it. The fact that Breyer has chosen to retire now is a sign that Democrats fear they will lose the Senate in the November election. 

Perhaps that’s not too much of a surprise. But it virtually guarantees that the battle to replace Breyer is unlikely to be the same kind of knockdown, drag-out fight as Justice Brett Kavanaugh’s nomination, nor even the considerably less unpleasant nomination of Justice Amy Coney Barrett. There are three reasons for this. 

The first is the abolition of the filibuster for judicial confirmations — something Democrats officially started in 2013 and promised to extend to the Supreme Court in 2016, when they believed they were about to win the presidency and the Senate. (Republicans were ultimately the ones who did that, to bring Neil Gorsuch’s nomination to a vote.)

Because Democrats have a majority now, Biden will get his nominee on the court, no matter what Republicans do. Barring exceptional circumstances, there are no Democrats — Joe Manchin included — who are likely to vote against a Biden Supreme Court nomination.

Second, the stakes are relatively low, as SCOTUS nominations go. This nomination, unlike that of Justice Barrett, will not significantly change the Supreme Court’s ideological composition, at least as it pertains to the biggest battles over politically charged issues. 

If Justice Breyer has any unique qualities as a justice, it is probably his relative lack of regard for defendants’ Fourth Amendment rights. The next liberal justice will probably be unlike him in this respect, but alike in all others. The court’s 6-3 (or 5-1-3) conservative majority remains unaltered.

Third, Republicans have always been terrible at fighting against liberal Supreme Court picks. The late Justice Ruth Bader Ginsberg received 96 votes for confirmation in 1993. Breyer himself received 87 votes. Justice Elena Kagan (who had never previously served as a judge) received 63 votes in 2010. Justice Sonia Sotomayor received 68 votes in 2009. 

Where the Left brings a gun to every judicial nomination fight, and has done so since the infamous treatment of Judge Robert Bork in 1987, Republicans have generally been willing to give Democratic presidents their picks without too much resistance — especially when they were in the minority in the U.S. Senate. 

Interestingly, we still have not seen what an opposite-party nomination fight will be like in the post-filibuster era. Indeed, we haven’t seen such a fight in some time. All three justices confirmed in the period since the judicial filibuster was abolished — Gorsuch, Kavanaugh, and Barrett — were Trump nominees confirmed by Republican-majority senates. Biden’s nominee will be confirmed by a Democratic senate. Both of Obama’s nominees were confirmed by a Democratic Senate, as were both of Bill Clinton’s nominees. Both of George W. Bush’s nominees were confirmed by Republican senate majorities.

Not since Clarence Thomas has any Supreme Court nominee received confirmation from a Senate controlled by the party opposite the president. The closest we came was with Barack Obama’s nomination of Merrick Garland, which the Republican majority chose to simply ignore. 

For now, Republicans are as powerless to stop Biden’ nominee as Democrats were to stop Neil Gorsuch’s nomination. Republicans will mostly or all vote against Biden’s pick, but the nominee will almost certainly receive confirmation this year.

The most important political consideration as to whom Biden picks is his promise, which conservatives rightly scoff at, that the person will be a black woman, even if the best progressive jurist for the job is not. This is already drawing some mockery, but it is unlikely either to help or harm Biden politically — it will not impress those who dislike him and it has been baked in the cake since he made the promise of a quota on the campaign trail.

Senate 2022

Biden the anchor: How low can they go? 

Of course, this is about President Joe Biden’s approval numbers. They are low nationally (55 percent disapproval in the RealClear average) and appear to be dragging down Democratic incumbents in key states across the map. 

In Arizona, a leftist group pegs Biden at nine points underwater (54% unfavorable, 45% favorable). This has helped pull Sen. Mark Kelly down to a three-point net negative, which is not a good place to start one’s re-election year. Although this poll has Kelly with razor-thin leads over his most likely potential opponents (Attorney General Mark Brnovich and Gov. Doug Ducey (who has not yet decide whether to run), it’s too close for Kelly’s comfort, especially for a partisan poll. 

Meanwhile, the Senate race in Georgia continues to shape up badly for Democrats, where Biden’s approval rating is an abysmal 34%. This is helping former University of Georgia football great Herschel Walker to run ahead of incumbent Democratic Sen. Raphael Warnock in the last two polls taken.

In short, the likelihood of a Republican Senate takeover seems to grow by the day. Biden finds himself ground up between the millstones of inflation and incompetence.

Biden’s big problems: The entire rationale for Joe Biden’s 2020 presidential candidacy was that he represented a return to normality. Where Donald Trump had represented chaos, unpredictability, and perhaps even incompetence, Biden was supposed to be the candidate of the way things used to be. In two very different but related ways, he has proven to be anything but that.

First of all, Biden has completely abandoned his campaign promises to unite the country and govern based on the consensus reflected in the narrow nature of his win and his narrow majorities in congress. As a consequence, Biden has lost the faith of most voters in Middle America. 

Second, the focus of Biden’s personnel is so keenly ideological that they lack competence to deal with the real world. To watch White House spokeswoman Jen Psaki (who lives in a very safe suburb of D.C.) talk about how crime doesn’t matter is to understand their problem. These people just don’t live in the same world as most voters (there is an especially large disconnect with the non-white voters whose support they depend on), so they are unaware of how detached their attitudes are from the reality that most voters experience.

This also meant that Biden’s people had no idea how to handle even the basics of the Afghanistan withdrawal, the event that began his administration’s long slide. They are now bungling Ukraine to the point that the British are feeling a need to reassert leadership over Western diplomacy for the first time since the humiliation of the Suez Crisis in the 1950s. The world situation is quite alarming — the considerations stopping China from invading Taiwan keep falling away as Russia prepares to wage aggressive war against Ukraine. 

Finally, the ideological myopia of Biden’s staff is also affecting his legislative game, which in turn prevents him from changing the narrative. Having insisted on an agenda far to the left of what was possible, Biden has essentially lost the ability to accomplish anything further with his narrow majority. Democrats’ attempt to abolish the Senate filibuster put an exclamation point on Biden’s inability to work with the opposition toward some kind of acceptable compromise that could have salvaged his agenda, with the sole exception of the bipartisan infrastructure bill that passed last year.

As a consequence, the Biden agenda is now completely dead. The election year guarantees that no big new initiatives will pass. Biden’s best hope will be to govern by executive order, but this is kind of a dull, double-edged sword. There is probably nothing Biden can get away with on his own that would be popular enough to save his presidency.

And so as Biden’s numbers continue to slide, Democrats such as Kelly, Warnock, Maggie Hasan in New Hampshire (where Biden recently posted a 57% unfavorable rating), Catherine Cortez-Masto in Nevada (who has already trailed in one poll and whose state party is in disarray), and all of the open-seat candidates vying for Republican-held Senate seats will be dragged down, with Biden hanging around their necks like an anchor. 

The 2022 cycle represents a historic opportunity for Republicans to win back back defensible seats in the Senate that were held by Republicans until not long ago — in Arizona, in New Hampshire, in Georgia, and in Nevada.

North Carolina: Former Rep. Mark Walker’s insistence on staying in the Senate race rather than dropping down and running for a House seat certainly scrambles the picture. Walker is an underdog in the Republican primary against former Gov. Patrick McGrory and Trump-endorsed Rep. Ted Budd. He could prove to be a spoiler. North Carolina lowered its runoff threshold from 40% to 30% in 2017, which means there will be a decisive first-round primary election.

Governor 2022

Georgia: The same University of Georgia poll that shows Herschel Walker running ahead of Sen. Warnock also has both Republican Gov. Brian Kemp and the Trump-backed former Sen. David Perdue beating likely Democratic nominee Stacey Abrams by a modest but clear margin. A recent Quinnipiac poll showed Kemp beating her by a smaller margin and Perdue tied with her. 

The national media have tried to make Abrams into a big star, but she will probably face a less sympathetic electorate in 2022, given her persistent denial of the 2018 result (she lost convincingly but refused to concede) and her advocacy of a boycott of her own state, which lost the MLB All-Star Game partly as a consequence.