By Mary Clare Jalonick and Lisa Mascaro
WASHINGTON (AP) – Senate Democrats who have played defense for the last three Supreme Court vacancies plan to move swiftly to replace retiring Supreme Court Justice Stephen Breyer, using the rapid 2020 confirmation of Justice Amy Coney Barrett as a new standard.
Barrett was confirmed exactly a month after President Donald Trump nominated her to replace the late Justice Ruth Bader Ginsburg – and just five weeks after Ginsburg’s death in September of that year. Democrats sharply criticized that timeline then, arguing that most confirmations had taken much longer and that Republicans were trying to jam the nomination through in case Trump lost reelection.
But now that they hold the presidency and the Senate, though just barely, Democrats navigating the complicated politics of a 50-50 chamber are eyeing a similarly swift schedule, even if Breyer does not officially step down until the summer.
In statements, Senate Majority Leader Chuck Schumer, D-N.Y., and Senate Judiciary Committee Chairman Dick Durbin, D-Ill., made clear that they would move quickly once President Joe Biden makes his pick. Biden said as a candidate that if he were given the chance to nominate someone to the court, he would make history by choosing a Black woman. The White House has reiterated Biden’s campaign pledge since his election.
Schumer said the nominee will “be considered and confirmed by the full United States Senate with all deliberate speed.” Durbin said he looks forward to moving the nomination ‘”expeditiously“ through the committee.
The nomination offers the chance at a reset for Biden and the Democratic Senate after Barrett’s confirmation left the court with a new 6-3 conservative majority and as they have struggled to pass key planks of Biden’s policy agenda. Democrats hope to replace the 83-year-old liberal justice without complication, and some Republicans may be willing to support a Biden nominee. But Democratic leaders are keenly aware that the death or illness of just one in their ranks could flip control of the Senate and upend their plans.
The Senate plans to launch the confirmation process as soon as Biden makes the nomination, regardless of when Breyer officially steps away, according to a Senate aide who was not authorized to publicly discuss the planning and spoke on condition of anonymity.
Democrats could quickly hold committee hearings and even a full vote in the Senate before Breyer steps down, the aide said. The Senate would just refrain from sending the president the paperwork on the final confirmation vote until Breyer has retired.
With such a narrow majority, Schumer will face heavy pressure to keep his caucus united. Two Democratic moderates, Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, have repeatedly bucked their party on policy goals and could oppose a Supreme Court nominee if they considered that person too liberal.
In a statement, Manchin said he takes the Senate’s role to advise and consent on Supreme Court nominations “very seriously” and looks forward to meeting and evaluating the eventual nominee.
At the same time, Democrats will be hoping for a handful of Republican votes. Sens. Susan Collins of Maine, Lisa Murkowski of Alaska and Lindsey Graham of South Carolina, for example, all voted last year to confirm U.S. Circuit Judge Ketanji Brown Jackson, one of Biden’s possible nominees.
Graham indicated in a statement Wednesday that he’s unlikely to support Biden’s pick, whoever it may be.
“If all Democrats hang together – which I expect they will – they have the power to replace Justice Breyer in 2022 without one Republican vote in support,” Graham said. “Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court.”
It will be the first time Democrats have had a Senate majority and the opportunity to fill a Supreme Court vacancy in more than 11 years. Since Justice Elana Kagan was confirmed in 2010, the GOP-led Senate has confirmed three justices, all nominated in Trump’s term: Neil Gorsuch, Brett Kavanaugh and Coney Barrett.
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