Despite razor-thin Senate majority, Biden faces favorable Senate conditions for Supreme

President Biden’s major priorities were stymied by the 50-50 Senate repeatedly during his first year in office – but barring something unforeseen, the president may be poised for a big Senate win in his effort to replace retiring Justice Stephen Breyer. 

“During the first year, I don’t think that Biden lost any Democrats on any vote for judicial nominees,” University of Richmond law professor Carl Tobias told Fox News. “And so it seems to me that they are likely to hold together depending on who the nominee is.” 

With the threshold to confirm a Supreme Court justice at 51 votes, that’s all Biden needs to get his yet-to-be-named nominee across the finish line. 

The two moderates who’ve most commonly frustrated Biden are Sens. Joe Manchin, D-W.Va., and Kyrsten Sinema, D-Ariz. But their records indicate they’re more likely to support Biden’s high court pick than not.

President Joe Biden speaks about the government’s COVID-19 response, in the South Court Auditorium in the Eisenhower Executive Office Building on the White House Campus in Washington, Thursday, Jan. 13, 2022. (AP Photo/Andrew Harnik)
( (AP Photo/Andrew Harnik))

HOW BIDEN COULD PULL THE SUPREME COURT MORE TO THE LEFT WITH BREYER REPLACEMENT PICK

Manchin voted for Justices Brett Kavanaugh and Neil Gorsuch under former President Donald Trump. 

He voted against Justice Amy Coney Barrett. But in a statement explaining his vote, Manchin said it was because the Senate shouldn’t have advanced the nomination “on the eve of a Presidential election.” Manchin said nothing of the justice’s qualifications or ideology. 

“I take my Constitutional responsibility to advise and consent on a nominee to the Supreme Court very seriously. I look forward to meeting with and evaluating the qualifications of President Biden’s nominee to fill this Supreme Court vacancy,” Manchin said in a statement Wednesday. 

Supreme Court Justice Stephen Breyer during an interview in his office, in Washington, in August 2021. (Photo by Bill O’Leary/The Washington Post via Getty Images)
(Bill O’Leary/The Washington Post via Getty Images)

WHO COULD REPLACE SUPREME COURT JUSTICE STEPHEN BREYER?

Sinema’s record on Supreme Court picks is more limited. She wasn’t yet in Congress when Gorsuch and Kavanaugh were confirmed. And she voted against Barrett because she was “concerned about Judge Barrett’s inconsistent views on legal precedent, and how those inconsistencies impact her obligation to interpret and uphold the rule of law.”

But according to FiveThirtyEight, Sinema’s voted “yes” on Biden’s judicial picks 100% of the time. So has Manchin. 

Sinema’s office didn’t respond to a request for comment for this story. She hasn’t yet released a statement on Breyer’s retirement, which he’s announcing Thurdsay at the White House. 

Sen. Joe Manchin, D-W.Va., defends the Senate’s 60-vote filibuster in a floor speech on Jan. 19, 2022. 
(https://www.senate.gov/legislative/floor_activity_pail.htm)

It’s not yet clear when Biden might announce his nominee to replace Breyer. But Tobias said he expects that to happen promptly, “given that Biden’s been in office for over a year and I’m sure they have a short list.”

Once Biden makes his pick, Senate Majority Leader Chuck Schumer, D-N.Y., said Wednesday, the Senate will confirm that person “with all deliberate speed.” 

BIDEN’S BIG BREAK: WILL BREYER REPLACEMENT BE ENOUGH TO TURN TIDE OF HIS PRESIDENCY?

Even if Biden appears at risk of losing Sinema or Manchin, there are three Republicans who voted for more than 80% of Biden’s judicial nominees so far, according to FiveThirtyEight. They are Sens. Lindsey Graham, R-S.C., Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska. 

Senator Kyrsten Sinema, a Democrat from Arizona, arrives to the U.S. Capitol in Washington, D.C., U.S., on Wednesday, Jan. 19, 2022. Senate Democrats edged closer to handing the White House another defeat as the chamber took up voting-rights legislation with extraordinarily long odds in the evenly divided chamber.
(Ting Shen/Bloomberg via Getty Images)

All three have long supported the idea that senators should deeply research judicial nominees but generally give deference to the president’s picks. 

Collins’ office declined to comment on the upcoming Supreme Court vacancy and Murkowski’s office did not respond to a request for comment. 

JUSTICE BREYER WILL BE REMEMBERED FOR PRAGMATIC, PROGRESSIVE VIEW OF LAW AND LIFE

“Justice Breyer has always shown great respect for the institution and his colleagues, and I wish him well in the next phase of his life,” Graham said in a Wednesday statement. “As to his replacement: 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.”

Senator Lindsey Graham, a Republican from South Carolina, listens during a hearing on May 26, 2021. (Photo by Stefani Reynolds / POOL / AFP) (Photo by STEFANI REYNOLDS/POOL/AFP via Getty Images)
((Photo by Stefani Reynolds / POOL / AFP) (Photo by STEFANI REYNOLDS/POOL/AFP via Getty Images))

Tobias said that statement may indicate Graham will shift his approach to be less deferential to a Biden Supreme Court nominee – something that’s not necessarily unprecedented. He referenced the statement Sen. Joni Ernst, R-Iowa, made in 2019 that although she would vote for Trump D.C. Circuit nominee Neomi Rao, she might not come to the same conclusion if Rao was later nominated to the Supreme Court. 

“Senators from both parties have made those kinds of statements before,” Tobias said. 

A spokesperson for Graham, however, told Fox News that the senator’s statement was “just noting that fact” that Democrats can confirm a nominee without GOP votes, not necessarily telegraphing any different approach on Biden’s nominee. 

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Another reason why Biden may have a relatively easy time getting his justice across the finish line, according to Tobias, is that Republicans might not attack the president’s nominee as aggressively as Democrats did to Kavanaugh. 

“It may be the Republicans just are willing to give him this one because the person isn’t that liberal… or there just isn’t that much mileage to be gained from beating on somebody who’s going to be confirmed anyway,” Tobias said. “And they may want to stick with the issues… they think are winners. So why go out of your way and you may alienate a lot of people for no good reason?”