(Headline USA) Three and a half years after left-wing activists—driven by the George Soros-funded Justice Democrats—waged a concerted smear campaign against then-Supreme Court nominee Brett Kavanaugh, the county has only become further polarized and political debate more acrimonious.
But that doesn’t mean Senate Republicans will seek to settle scores after the seemingly coerced mid-session retirement of liberal Justice Stephen Breyer.
In a U.S. Senate that was upended by toxic Supreme Court battles during the Trump era, the confirmation of President Joe Biden’s pick has the potential for something else: a return to calmer political normalcy—barring the selection of a radical idealogue who proves to be a nonstarter due to circumstances other than judicial philosophy.
Biden’s decision to declare in advance that he will only consider black women for the job has garnered its share of controversy. A majority of Americans oppose, in principle, the exclusion of other candidates and the preferential treatment based on race and gender.
However, in terms of drawing red lines on supporting the eventual nominee, the degree to which she can honor the court’s tradition as a sacred institution free from political influence and corruption is far more important for those on the Republican side of the aisle.
Because the ideological balance of the court is not at stake—Biden is expected to nominate a liberal judge to replace Breyer, who is retiring—the charged partisan atmosphere that greeted other recent vacancies is notably absent.
The fact that Republicans tend to be far more generous in respecting Democrats’ right to hold differing viewpoints also plays a major factor.
Although Republicans have fielded significantly more nominees over the last 50 years, Democrats have made several attempts—some of them successful—to block the selections of GOP presidents, while the liberal picks from Democrats historically have coasted through the process.
Most Republicans still are expected to oppose Biden’s nominee, no matter who it is. But having changed the rules to prevent a filibuster, they are essentially powerless to stop the Democratic majority from confirming Biden’s choice.
They’re expected to refrain from dramatic action, content with the 6-3 conservative majority they solidified under former President Donald Trump.
“I think it’s going to be a more traditional confirmation fight,” said Mike Davis, a former chief counsel to Republicans on the Senate Judiciary Committee and now president of the Article Three Project that advocates for conservative judges.
Texas Sen. John Cornyn, a member of the committee, said the nominee will be treated not only “fairly” but with “dignity and respect.”
Biden has pledged to nominate the first black woman to the court, making it politically harder for Republicans to oppose a historic pick without subjecting themselves to race-hustling smear attacks.
Biden also said at Breyer’s official announcement on Thursday that he planned to talk to GOP senators before making his decision by the end of February.
Early indications are that Judge Michelle Childs may be the frontrunner after two powerful South Carolina-based lawmakers—ranking Judiciary Committee Republican Lindsey Graham and Democrat House Majority Whip James Clyburn—both threw their weight behind her.
Both touted the fact that Childs was not a product of the elite Ivy Leagues but had attended the University of South Carolina.
“I’d like to see the court have a little more balance, some common sense on it,” Graham said.
“Everybody doesn’t have to be from Harvard or Yale,” he added. “It’s OK to go to a public university and get your law degree.”
If there are no glaring problems with the nominee, the confirmation hearings could proceed relatively drama-free, senators say.
Still, the challenges of a 50–50 Senate will hang over Democrats who control the process for the first time in more than a decade.
With such a narrow balance, Republicans could slow the process by throwing up procedural roadblocks—similar to those Democrats attempted with Kavanaugh and Justice Clarence Thomas. And Democrats who have said they want a speedy confirmation process could turn off moderates in both parties if they try to move too fast.
For now, some Republicans and conservative groups are promising a vigorous political debate but with restraint, mindful that Democrats suffered politically Kavanaugh’s contentious confirmation fight in 2018.
Senate Democrats went on to lose seats in the midterm elections after focusing on baseless allegations that Kavanaugh sexually assaulted an acquaintance when he was a teenager—a charge he vigorously denied—and Republicans are not interested in staging a similar showdown.
“Republicans need to fight hard, but fairly,” Davis said.
In addition to Graham, Biden’s nominee could even win support from several other moderates in the GOP caucus.
Maine Sen. Susan Collins has voted for many of Biden’s choices for lower courts. She said Wednesday evening that Judiciary Committee Chairman Dick Durbin, D-Ill., had already reached out to her about the process to come.
“There is no need for any rush,” Collins said, noting that she voted against Justice Amy Coney Barrett in 2020 because Republicans moved too fast to confirm her.
Breyer has said he won’t officially step down until the court’s term ends this summer.
Most Republicans have been quiet on strategy as they wait to see who Biden chooses.
Senate Republican Leader Mitch McConnell, R-Ky., said Thursday that the American people elected a 50–50 Senate, and that Biden’s mandate was to “govern from the middle, steward our institutions, and unite America.”
“I’m going to give the president’s nominee, whoever that might be, a fair look,” McConnell said.
Perhaps the greatest risk for Biden is if his own party splinters into factions who prefer a more liberal or centrist choice.
That’s the kind of scenario that could make it difficult for Senate Majority Leader Chuck Schumer, D-NY, to rally all 50 Democratic senators, with no votes to spare.
In fact, a lack of party unity has badly hobbled Democrats in recent months.
Two moderate Democrats, Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, have split from their colleagues and stopped large swaths of Biden’s radical policy agenda. But both have also been reliable votes for his nominees to courts.
Manchin signaled on a radio show in his home state Thursday that he is prepared to support Biden’s high court nominee, as well, as long as the person is fair and able to work with the other justices.
“It would be the character of the person” that matters, Manchin said, even if the nominee is more liberal than he is.
Sinema said in a statement that she will examine the nominee based on whether she is “professionally qualified, believes in the role of an independent judiciary, and can be trusted to faithfully interpret and uphold the rule of law.”
Outside conservative groups are preparing to portray Biden’s nominee as out of step with the mainstream, hand-picked to satisfy the liberals in the Democratic Party, in contrast to Biden’s campaign promises to govern as a more moderate figure.
It’s a message that dovetails with the GOP’s broader critique of a president they say is captive to the Democrats’ progressive wing.
Carrie Severino, president at the limited-government-advocacy Judicial Crisis Network, said her group plans to focus in part on the eventual nominee’s ties to any liberal groups, particularly those that help fund candidates and issues.
“You will not see the personal, ugly attacks,” Severino said in an interview. But opposition is still likely, she indicated, predicting Biden’s choice will be “a nominee that is not responding to that call for moderation and is going to move the court to the left.”
This will be the first time Democrats have had a Senate majority—with Vice President Kamala Harris’ tie-breaking vote—and the opportunity to fill a Supreme Court vacancy in more than 11 years.
All three of those confirmation battles were searing experiences for Democrats.
Gorsuch was confirmed a year after Republicans refused to allow a vote on President Barack Obama’s choice to serve on the court, now-Attorney General Merrick Garland.
Kavanaugh was confirmed after a wrenching hearing in which his high school acquaintance, Christine Blasey Ford, accused him of sexual assault.
Barrett was confirmed in late October of 2020, just days before the election that Biden won, replacing liberal icon Ruth Bader Ginsburg and shifting the balance of the court decisively toward conservatives.
Adapted from reporting by the Associated Press