Report: No, Biden's not going to put Kamala Harris on the Supreme Court

AP Photo/Evan Vucci

Well, that’s a shame. The country would have profited from having this sort of eloquence at oral argument.


Speculation is rampant among righties today wondering if Biden will use Breyer’s vacancy to try to rid his party of Vice President Shemp, but the answer is reportedly no:

Are we sure about that? There are arguments for nominating Harris:

We’ll come back to that third point in a moment. For now, it’s enough to remember that putting Harris on the Court would require finding a replacement VP immediately — and the problem the Democratic Party has in 2024 is that it lacks any obvious alternatives to Kamala Harris. In theory, making Harris a Supreme Court justice would give Biden some political leeway to appoint a white and/or male candidate as his new vice president since, after all Harris wouldn’t have been “demoted.” She’d have been given a prestigious job and made history in the process, becoming the first ever black woman member of SCOTUS after having become the first black woman VP.


But would the Democratic base view it that way, particularly African-American voters? If Harris was appointed to the Court and, say, Pete Buttigieg were nominated for vice president, I don’t think the take among lefties and black voters would be “First black woman justice!” I think it would be, “So they found an excuse to ditch the black woman because they wanted a white man to run in 2024, is that it?”

Not a political win for Sleepy Joe. And if he did appoint Harris to the Court and then felt obliged to replace her as VP with another black woman, whom would he choose? Stacey Abrams is the most prominent African-American woman politician in the party besides Harris herself and she’s never even held statewide office. She’s a nonstarter. Val Demings was shortlisted for VP in 2020 but she’s served in the House for only three terms and is probably going to be obliterated by Marco Rubio in this year’s Florida Senate race.

How about Susan Rice, who’s never held elected office of any kind? Could she even be confirmed?

At 57, Harris would also be on the older side for a new justice. The left wants someone who’ll easily be on the Court for another 30 years in good health. Leondra Kruger, one of the shortlisters for Breyer’s seat, is just 45 by comparison.

It’s not going to be Harris. But it will be someone, and soon. According to CNN, Chuck Schumer is looking to follow the GOP’s lead on Amy Coney Barrett by confirming the eventual nominee at a breakneck pace. No doubt that’s because he’s worried about a Democratic senator dying in office near-term and being replaced by a Republican governor, derailing the confirmation process. Or he’s worried about Joe Manchin finally being convinced by the GOP to switch sides and make Mitch McConnell leader again before the hearings are held.


Senate Majority Leader Chuck Schumer is looking at a quick time frame to confirm President Joe Biden’s nominee to the Supreme Court — and he will follow a similar timeline that Republicans employed to confirm Amy Coney Barrett to the court in 2020, according to a source familiar with his thinking.

Senate sources also say that the Senate can act on the Biden nominee before Justice Stephen Breyer officially steps down from the court. So Democrats expect to hold hearings and votes before Breyer officially steps aside at the end of his term.

Right. It’d be odd to have Breyer’s replacement already confirmed while he’s still hearing cases but there’s nothing constitutionally that prevents it, as far as I know. Once he states his intention to retire by a given date, Dems can nominate and vote on his successor. She’ll take his seat once he vacates it. (Don’t ask me what would happen if Breyer changed his mind about retiring after his replacement’s confirmation. Fun thought experiment!)

If CNN’s right that Schumer wants a speedy confirmation then the case for Ketanji Brown Jackson over Kruger as nominee is strengthened. That’s because Jackson is in the same position as Barrett was in 2020, having been vetted and confirmed to an appellate judgeship not long before her SCOTUS nomination:


Jackson was confirmed 53-44 last June. What would the argument be for not confirming her again eight months later? Republicans will argue that she needs to be vetted anew for a Supreme Court nomination since the job is different in fundamental ways than the job of being a circuit judge is. SCOTUS can overrule its own precedents, lower courts can’t, so the views of each nominee for the high court need closer scrutiny. Democrats made the same arguments with Barrett, though, and they didn’t work. They’re unlikely to work with Jackson either.

But let’s say they work well enough to shift all 50 Republican senators into the no column. That leaves us with a 50/50 tie, with Kamala Harris the tiebreaking vote in Jackson’s favor, right? Maybe not, says one renowned legal scholar:

While the vice president has the power to cast a tiebreaking vote to pass a bill, the Constitution does not give him the power to break ties when it comes to the Senate’s “Advice and Consent” role in approving presidential appointments to the Supreme Court.

You don’t have to take my word for it. Alexander Hamilton said the same thing way back in 1788, in Federalist No. 69: “In the national government, if the Senate should be divided, no appointment could be made.” Hamilton contrasted that rule with how appointments worked back then in his home state of New York, where the governor actually did have the power to break ties to confirm nominations to New York state offices…

For those who care about the details, Hamilton’s view and the historical practice (up until this administration) is confirmed by the structure and drafting history of our Constitution. As a structural matter, the provision granting the vice president the power to break ties in the Senate is located in Article I, which addresses Legislative Power. By contrast, the Senate’s “Advice and Consent” power over judicial appointments appears in Article II, making it a form of power wielded by the Senate that is executive, not legislative, in nature. The vice president has some power to influence legislation, by casting a tiebreaking vote in the Senate, while the Senate has some power to influence executive appointments, by granting or withholding consent. Structurally, the vice president cannot smuggle his Article I legislative tiebreaking power into Article II to undermine the Senate’s unique Article II executive power of advice and consent.


That scholar was … lefty favorite Laurence Tribe, writing in 2020 about what should happen in the event of a Senate deadlock on Barrett. I expect you’ll hear a lot about Tribe’s reasoning from conservatives over the next few months, particularly as a way of pressuring Collins, Murkowski, and Graham to vote no on Biden’s nominee. It would be hilarious watching Tribe backpedal under pressure from progressives to get the new justice confirmed if the Senate deadlocks.

Whatever happens, though, the nominee won’t be Harris…

…but it almost certainly will be a black woman:

In lieu of an exit question, read Charles Cooke on reasons why the Breyer vacancy is good news, sort of, for the right. The most notable is his argument that passage of Build Back Better is now less likely than it was before for the simple reason that Manchin won’t want to vote for a Democratic Court nominee and a left-wing mega-bill. If he agrees to confirm Biden’s new justice, he may conclude that that’s as far as he can go in West Virginia to piss off Republicans and still get reelected in 2024. Endgame for BBB.


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