Bitter Supreme Court fight weighs on upcoming nomination

WASHINGTON — It’s a testament to the collapse of the Senate’s judicial confirmation mechanism that the first question asked by many last...


WASHINGTON — It’s a testament to the collapse of the Senate’s judicial confirmation mechanism that the first question asked by many last week about an upcoming Supreme Court vacancy was whether Democrats could install a new justice entirely by themselves. themselves.

The answer is yes, if the party remains united. And the prospect of President Biden’s eventual nominee receiving only Democratic votes isn’t far-fetched, given the bitter history of recent confirmation fights for the High Court.

Judge Amy Coney Barrett, the latest Senate-confirmed court member, did not receive a single Democratic vote. But Republicans held a 53-47 advantage and could afford to lose a colleague or two by securing his nomination just before the 2020 presidential election.

With their minimum 50-seat majority, Democrats won’t have that luxury after Mr Biden nominates the first black woman to the court in the coming weeks. Given the toxic partisan atmosphere surrounding contemporary Supreme Court fights, it’s conceivable that she could go down in history not just because of her gender and race, but also as the first person raised to the court by a deciding vote of the vice president.

That would be a far cry from the simple voice-vote endorsement of many of his predecessors as recently as the 1960s. Or the 98-0 confirmation of Justice Antonin Scalia, a prominent judicial conservative, in 1986. Or the vote by 87 to 9 in 1994 for Justice Stephen G. Breyer, a member of the liberal wing of the court, who announced on Thursday that he would step down after nearly three decades.

The decline in Supreme Court consensus confirmations has been precipitous and the escalation of partisan warfare has been brutal.

Deep bitterness lingers over the Democratic assault on Robert H. Bork in 1987; the routine deployment of filibusters against judicial nominees on both sides beginning in the administration of President George W. Bush; the Republican blockade of Judge Merrick B. Garland in 2016; the tumultuous confirmation of Judge Brett M. Kavanaugh in 2018; and the hardline Republican decision to rush Judge Barrett to the court two years later.

With the Supreme Court ruling on so many of today’s most polarizing issues – including abortion rights and affirmative action – neither side is willing to give up much ground and the two display their battle scars.

“It’s a sad commentary on the nominating process that it has disintegrated so much over the years,” said Senator Susan Collins of Maine, one of the few Republicans considered to be in play as supporters. potentials of Mr. Biden’s choice. “If you look at the incredibly strong vote Stephen Breyer was confirmed by, you just don’t see it these days.”

Democrats would very much like to avoid a skin-to-the-toe party-line vote for anyone Mr. Biden nominates. One of the first calls made by Senator Richard J. Durbin, Democrat of Illinois and chairman of the Judiciary Committee, was to Mrs. Collins, promising all the materials and assistance he could provide her with the to help assess the next candidate.

Democrats also hope that the fact that Mr. Biden’s choice would replace a liberal justice and not tip the ideological balance of the staunchly conservative court – and the fact that she will be an African-American woman – will dissuade Republicans from a scorched earth campaign when their chances of winning are low.

But while Republicans promise an open review of the nominee, grudges over previous confirmation clashes, most recently Judge Kavanaugh’s fight over sexual assault allegations, are never far from the surface.

“Anyone who nominates the president will be treated fairly and with the dignity and respect that a person of his caliber deserves, which is not accorded to Justice Kavanaugh and other Republican candidates of the past,” said Sen. John Cornyn of the Texas, a senior Republican member of the Judiciary Committee, said in response to Judge Breyer’s retirement.

Besides Ms. Collins, another Republican who will catch the attention of Democrats is Senator Lisa Murkowski of Alaska, a frequent supporter of Democratic presidential hopefuls and the only Republican to oppose Justice Kavanaugh.

Ms Murkowski is running for re-election this year under a new preferential voting system. She is already opposed by a far-right conservative vigorously backed by former President Donald J. Trump, who is furious with Ms. Murkowski for voting to convict him during her impeachment trial following the 6 January against the Capitol. Siding with Mr. Biden’s pick for the court could help her attract the Democratic and independent voters she might need to win under her state’s new election rules.

Sen. Lindsey Graham, a Republican from South Carolina and former Judiciary Committee Chair, has also deferred to Democratic presidents in the past and voted for the judges and lower court justices they nominated.

Last year, Mr. Graham, Ms. Collins and Ms. Murkowski were the only three Republicans to back Justice Ketanji Brown Jackson, a favorite to succeed Justice Breyer, for a seat on the influential U.S. Court of Appeals for the District of Columbia. . Circuit.

Endorsing someone for a circuit court seat is not a guarantee of endorsing that same person for the Supreme Court. However, backing someone for the high court after opposing that person for a lower court would be harder to reconcile, making it unlikely that any of the 44 Republicans who opposed Judge Jackson would back down. and support her now. Everyone knew at the time that she was a future candidate for the high court. Three Republicans were absent.

Mr. Biden could also select Judge J. Michelle Childs of the Federal District Court in South Carolina, who has been strongly supported by Representative James E. Clyburn, a powerful lawmaker in that state and House Democrat No. 3 If Mr. Biden nominates Justice Childs, his selection could pressure Mr. Graham and South Carolina’s fellow Republican senator, Tim Scott, to support her.

But allegiance to the state of origin is not a guarantee. Colorado Democrat Senator Michael Bennet opposed the Supreme Court nomination of Colorado native Justice Neil M. Gorsuch, even though the senator introduced him during his confirmation hearing.

The case of Judge Gorsuch is instructive. Although very conservative, he was the kind of highly experienced, pedigree, and qualified candidate that a Republican president might have fielded in the past in the hope that he would receive strong support in the Senate despite ideological differences.

But since Justice Gorsuch took the seat left open by Justice Garland’s nearly year-long blockade and was nominated by Mr. Trump, most Democrats have backed down. Only three voted for his confirmation. Only one, Senator Joe Manchin III of West Virginia, remains in the Senate; he was also the only Democrat to vote for Justice Kavanaugh.

Another potential candidate with a Senate voting history is Justice Wilhelmina M. Wright of the Federal District Court of Minnesota, who was confirmed in a 58-36 vote in 2016. Thirteen Republicans voted for her, and five of them remain in the Senate today. , including Sen. Mitch McConnell of Kentucky, the Minority Leader. But a vote for a district court nominee is not the same as a vote to put someone on the highest court.

Even before the nominee is known, it’s clear that the outcome in the Senate will most likely be highly partisan, with the nominee receiving at best a few Republican votes — and possibly none. For a country torn apart by partisanship and a court struggling with its image and credibility, this is far from an ideal outcome.

“I really think it would be detrimental to the country to repeat what we have seen with the last two candidates so narrowly confirmed,” Ms Collins said. “I just don’t think it’s good for the country, or for the court.”

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Newsrust - US Top News: Bitter Supreme Court fight weighs on upcoming nomination
Bitter Supreme Court fight weighs on upcoming nomination
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