Why the GOP should sit out the SCOTUS confirmation fight

AP Photo/J. Scott Applewhite

With this morning’s announcement that the Democrats have patched up their relationship with Associate Justice Stephen Breyer (who will be doing a formal announcement with Biden today), the stage is set for some sort of dramatic confirmation fight. CNN was issuing warnings this morning about how the Senate Republicans could use procedural maneuvers to gum up the process and drag it out for as long as possible. And I’m already seeing a few conservative pundits talking about how Mitch McConnell needs to “fight” Biden tooth and claw before another liberal is handed a lifetime appointment to the nation’s highest court.

Without wishing to rain on anyone’s political parade, I’m going to suggest that any such plan would be the worst approach imaginable for a number of reasons. All of these reasons stem from one bit of political reality that should be immediately obvious. A nasty, drawn-out fight over this confirmation is precisely what the Democrats are hoping for and they’re already telegraphing their punches. As the Associated Press pointed out this morning, Democratic leaders are already seeing the upcoming confirmation process as a way to revive their prospects for the midterm elections.

Democrats stung by a series of election year failures to deliver legislative wins for their most loyal voters hope they’ll be buoyed by the prospect that President Joe Biden will name the first Black woman to serve on the Supreme Court.

Justice Stephen Breyer’s pending retirement, confirmed by numerous sources on Wednesday, couldn’t have come at a better time for a Democratic Party reeling from the collapse of Biden’s legislative agenda last week, including a push to overhaul election laws that voting rights advocates said was critical to protecting democracy.

The AP article paints this as more of an opportunity to hit the pause button on all of the Democrats’ legislative failures and give their progressive base something to cheer about since Biden is already handcuffed to the prospect of nominating a Black woman to replace Breyer. (A promise that immediately eliminates a host of highly qualified Hispanic candidates and completely ignores the fact that there has never been an Asian-Pacific American judge nominated, nor a Native American one, while there have already been both Black and female justices appointed.)

But the Democrats won’t be satisfied with simply cashing in politically on the perception of more “diversity” on the court. What they really want is a fight. They have very little to show their base in terms of accomplishments over the past year, but they will relish the prospect of reminding all of their voters that the evil Republicans are a threat to lock down a conservative majority on the Supreme Court for the next generation and they need to be stopped at all costs. Granted, the Democrats are in an unenviable position if the best get out the vote message they can summon up is ‘okay, we screwed up a bunch of stuff and really didn’t get anything done for you, but the other guys are worse.’ But it’s a message they’ll try to drive home anyway.

Don’t give them that opportunity. This is a fight that the GOP is destined to lose anyway because the Senate Democrats will almost surely be unified in support of Biden’s pick and there are already some Republicans like Susan Collins making noises about supporting the eventual nominee. All the GOP could really do is drag the process out longer than it needs to go, keeping the story on the front page and giving the Democrats something to talk about to bolster their cratering approval numbers.

I would suggest that Mitch McConnel adopt the same strategy that he did with the debt ceiling debate. When reporters come to him looking for fire and brimstone, he should calmly say that the President has the right to nominate whomever he pleases. Then, when we learn the name of the nominee, he can simply say that nominee is too ideologically driven for a seat on the court, but they will likely be confirmed. But the Democrats will need to do it with their own votes.

That defuses the entire argument against the Republicans. As a bonus, if one or two recalcitrant Senate Democrats start making noises about not being sure about the nominee, we can all sit back and munch popcorn while they continue to tear each other up.

And let’s not lose sight of which seat is going to be filled. Breyer is part of the three-vote liberal block on the court. Anyone that Biden nominates will be far enough to the left that they will almost always vote with Kagan and Sotomayor anyway, so nothing is really going to change. If we were to lose one of the conservative justices then I would definitely say we needed to be going to the wall and fighting like hell even if we’re doomed to lose. But replacing Breyer with another liberal is just a wash.

I’m not the only person expecting (or at least hoping) that this storm passes us by. Politico doesn’t seem to think this will turn into a scorched earth fight.

The conservative movement has, for decades, prioritized Supreme Court fights over nearly all other forms of political battle.

But a survey on Wednesday of some of the top officials and activists in that universe indicates that they aren’t planning a vicious political fight over President Joe Biden’s pick to replace retiring Justice Steven Breyer. At least not yet.

Top officials at conservative judicial groups said they viewed the current landscape as less than conducive to a successful bare-knuckled confirmation fight. A Breyer retirement was long expected, Republicans do not control the Senate and, most importantly, a new justice would not shift the court’s ideological balance, let alone its majority.

That sounds about right to me. Sometimes it’s important to remember the common wisdom of recognizing that you need to pick your battles wisely. And there are times when it’s better to keep your powder dry for the more important fights to come.