With Wednesday’s news that Justice Stephen Breyer will retire from the Supreme Court at the end of its current term, Democrats have avoided their worst-case scenario for the nation’s highest court: that Republicans would take control of the Senate before Breyer retired, allowing Sen. Mitch McConnell to keep Breyer’s seat open to eventually replace the liberal justice with a more conservative one.
But that fear has now been replaced by a different one. Although Democrats currently enjoy control of the Senate, it is by the narrowest of margins: 50-50, with Vice President Kamala Harris as the tie-breaking vote. And two members of the Democratic caucus, moderate Sens. Joe Manchin and Kyrsten Sinema, have already torpedoed several major Democratic priorities, including voting-rights legislation and the Build Back Better Act. Could Manchin and Sinema delay — or even block — the confirmation of Breyer’s replacement too?
Based on past judicial confirmation votes, it’s unlikely.
The Senate has been remarkably efficient at passing President Biden’s judicial nominees so far: During the first year of his presidency, 42 of Biden’s district-court and appeals-court nominees have been confirmed — more than any president since John F. Kennedy.
And crucially, Democrats have been united behind those nominees. The next time a Democratic senator votes no on one of Biden’s judicial picks, it will be the first time. That means that even Manchin and Sinema have 100 percent track records of supporting Biden’s judicial nominees.
Democrats have been united behind Biden’s judicial picks
How often each senator has voted for and against President Biden’s district-court and appeals-court nominees, as of Jan. 26, 2022
|Catherine Cortez Masto||D||42||0||100|
|Chris Van Hollen||D||42||0||100|
|Ben Ray Luján||D||41||0||100|
|Shelley Moore Capito||R||8||24||25|
Of course, there are limitations to this kind of analysis. First, Democratic senators have occasionally skipped confirmation votes, which could be a convenient way to avoid casting a “no” vote. (And both Manchin and Sinema have skipped an above-average number of votes: seven for Manchin, 12 for Sinema.) We also don’t know if there are any confirmation votes Senate Majority Leader Chuck Schumer declined to hold because he knew the nominee didn’t have the votes.
But at the very least, Manchin, Sinema and every other Senate Democrat have been reticent to publicly express opposition to one of Biden’s nominees — and with a position as important as the Supreme Court, the pressure to toe the party line will likely be even greater.
If anything, the data shows it’s more likely that a Republican might break ranks to vote for Biden’s Supreme Court nominee than that a Democrat would vote against her. Three Republicans have voted for a majority of Biden’s judicial nominees thus far: Sen. Susan Collins (36 out of 42), Sen. Lisa Murkowski (33 out of 39, with three missed votes) and Sen. Lindsey Graham (26 out of 31, with 11 missed votes).
Collins and Murkowski are well known as two of the most moderate members of the Republican caucus, and Graham is a throwback to an earlier era when the Senate deferred to the president on his appointees. “Senator Graham has long believed that under the Constitution the president has the right to select judges of their choosing and as long as they are qualified, they should generally be confirmed by the Senate,” Graham’s office said in a statement last year.
Of course, the same intraparty pressures that could keep Manchin and Sinema in line for a Supreme Court nominee would also apply to Collins, Murkowski and Graham, so Biden shouldn’t count on their votes. (In particular, Murkowski is up for reelection this year and faces a formidable Republican primary challenge, so she may not be inclined to anger Republicans further with a pro-Biden vote.) But if Biden is looking for bipartisan support for his nominee, he’s most likely to find it among these three senators.
Aaron Bycoffe contributed research.