For more than three decades now, since the failed nomination of Robert Bork to the Supreme Court in 1987, nominations of new justices to the court have occasionally become political street fights. But President Biden's forthcoming nomination of a Black woman to replace retiring Justice Stephen Breyer likely won't be.
According to conservative legal scholars and aides to senators on Capitol Hill, the GOP will likely put up little more than token resistance to whomever Biden eventually nominates.
One factor in their thinking is plain: Democrats control the evenly divided Senate, with Vice President Kamala Harris casting the deciding vote. As a practical matter, the GOP can't block whoever Biden nominates. "Elections have consequences," Senator Lindsey Graham, a Republican from South Carolina and the ranking minority member on the Judiciary Committee, said in a statement on Wednesday, "and that is most evident when it comes to fulfilling vacancies on the Supreme Court."
That's not the only reason there probably won't be much in the way of fireworks whenever confirmation hearings begin. The fact is, the next justice will not significantly shift the ideological composition of the court. Breyer, appointed by President Bill Clinton in 1994, was a reliable vote for the "liberal" wing of the court in his 28-year career. Conservatives now solidly control the court, with at least five justices sharing judicial philosophies so similar that they usually vote together, and Chief Justice John Roberts often, but not always, offering a sixth conservative voice. Biden's nominee will do nothing to alter that balance.
Biden's plan to nominate a Black woman also muddies the waters for any Republicans thinking of putting up a fight. The president's poll numbers have cratered among pretty much all Americans, including Black Americans. A recent NBC News poll shows his approval rating among Black adults has fallen to 64 percent, down from 83 percent nine months ago. The GOP made slight inroads among Black voters while Donald Trump was president, and they hope to continue to grow Black voter support in the 2022 midterms and in 2024. Vociferously opposing the first Black woman to ever be nominated to the court "just wouldn't be a good look, assuming she's qualified," a GOP staffer on the Senate Judiciary Committee told Newsweek on condition of anonymity.
"This is not a fight they want to have," echoed conservative legal scholar Adam White, a Senior Fellow at the American Enterprise Institute.
In fact, one of the presumed front runners for the nomination, Ketanji Brown Jackson, who Biden appointed to the D.C. Circuit Court of Appeals last year, is almost assured of getting at least a few GOP votes if she gets the nod. Three GOP Senators–Graham, Susan Collins and Lisa Murkowski–all voted for her when Biden put her up for the court of appeals in 2021. She hasn't written a single decision for the court in the last year, so there is almost no reason for the three GOP senators to have changed their opinions of her now.
There are, to be sure, other factors in play whenever a new Supreme Court nominee comes forth. Political groups both left and right often try to gin up controversies and then raise funds from their respective bases. And as White says, "there may be members who use the hearings to set the stage for a possible presidential run." That sort of speculation surrounds Josh Hawley, the ambitious young Republican senator from Missouri, who immediately jumped on Fox News to say that Biden's intention to nominate a Black woman reflects "a hard woke left that is race obsessed and gender obsessed. I hope Republicans are ready to stand up for the Constitution."
But Hawley is likely to be among only a few outliers. The smarter political play for the GOP as a whole is to ask pointed but respectful questions during the confirmation hearings, and then as quickly as possible put the attention back on the issues that have been sinking Biden's presidency, and his poll numbers : crime, inflation and immigration. "There just isn't a lot to be gained [politically]" White said, "in putting up a big fight here."
Uncommon Knowledge
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