Malouf: Breyer would facilitate the arrival of Biden's nominee 1:05
The last thing an internally estranged America needs is an alienating Supreme Court confirmation battle.
But that is what lies ahead after Judge Stephen Breyer's decision to retire.
President Joe Biden's first pick for the Court will present a promising moment for a struggling administration, offer Senate Democrats a much-needed chance for unity and could break another glass ceiling as Biden plans to nominate a black woman.
And despite the narrowness of their Senate majority, it should be reasonably easy for Democrats to confirm a new justice quickly, without any Republican votes, before they risk losing the chamber in the midterm elections.
Supreme Court Justice Stephen Breyer plans to retire, giving Biden a chance to name a replacement
A drama-free Supreme Court process could improve Congress's tarnished image, help a president whose approval ratings are slipping and do something good for the tarnished reputation of a court increasingly mired in politics.
And since replacing Breyer, a liberal, won't change the court's conservative balance (6-3), it might seem like the stakes are lower this time.
But those hopes ignore the corrosive impact of recent nomination fights, which have ended with Democrats accusing the GOP of stealing seats and conservatives claiming nominees suffered character assassinations.
Plus, there are the legacy scars of deeper Supreme Court battles in the past, some of which involve the president himself, that may have some conservatives plotting revenge.
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The political fury that has been unleashed throughout the fight against covid-19 has created a fetid political environment that is hardly conducive to magnanimous audiences.
And the midterm elections in November mean that senators have every incentive to play each party's most ardent activist voters before the television cameras.
An ideological agenda generates political discord
Another reason a smooth confirmation process is unlikely is the growing prominence of the court itself in American political life.
The idea that the Supreme Court is above politics has always been something of a myth.
But dominating the high court has been a key goal of the conservative movement for several decades.
So it's no wonder the successful campaign has damaged the judges' reputation for impartiality. And the new majority is being used in clearly partisan ways, with Republican attorneys general seeking to fast-track cases to their marble courtroom on the most polarizing issues, including abortion, government powers to fight the pandemic and the gun control. Former President Donald Trump sought to drag his delusional claims of voter fraud and the investigation into the Jan. 6 insurrection into court, two issues that have left him exposed to the bitter winds of partisanship.
All of this will inject an even more politicized tone into the confirmation hearings for the next judge. It could lead senators on both sides to seek politically motivated guarantees that could heighten the impression that the court is now populated by partisans.
Today's Supreme Court nominees are highly educated and, by their very nature, adept at dodging trick questions.
But still, Republicans are likely to seek answers on issues like gun laws that the candidate would do well to avoid.
And progressive senators could ask the candidate in a hearing about his position on abortion, as Roe v. Wade, the landmark case affirming a woman's right to terminate a pregnancy, is under siege from the Court.
While these trades are unlikely to scuttle a nomination, they will inevitably drag the Biden pick onto treacherous ground.
Democrats get a second chance
The coming weeks will test the Democrats' competence to get things done while in control in Washington.
Despite some early victories, a White House that ran to fix problems and congressional Democrats have developed a propensity to shoot themselves in the foot.
There is mounting criticism of Senate Majority Leader Chuck Schumer's political tactics following the stalling of Biden's Build Back Better climate and social spending plan and Democratic voting rights bills.
West Virginia Sen. Joe Manchin and Arizona Sen. Kyrsten Sinema, who were obstacles to those bills, have never voted against a Biden judicial nominee, so it would be a surprise if the Democratic coalition split. But party leaders have learned the dangerous nature of a 50-50 majority in the Senate. And an untimely death or serious illness among the aging Senate Democrats could seriously delay or even jeopardize the confirmation process.
Biden has a very effective weapon in his arsenal as he begins his selection process: his chief of staff, Ron Klain, who engineered Supreme Court nominations in the Clinton and Obama administrations.
Klain has faced criticism during the Biden administration as the White House stumbled, including in the pandemic and during the chaotic pullout from Afghanistan.
As such, the appointment is an opportunity for him to regain his prestige in Washington and to offer the president a much-needed victory that could reinvigorate Democrats ahead of the difficult midterm elections looming in November.
Republicans can still cause headaches
No Supreme Court nomination fight would be complete without the shadow of Republican leader Mitch McConnell.
Since he is in the minority, McConnell seems powerless to derail Biden's first election.
But his vocation is to dash the hopes of the Democrats on the Court, and he has used all kinds of procedural tricks to seat a generational conservative majority on the highest court, without a doubt the greatest achievement of the Trump presidency.
The cunning Kentucky and conservative legal establishment that built the current court have the power to make the appointment of a new judge a painful ordeal.
In the first sign of the partisan battle that is coming, Carrie Severino, president of the Judicial Crisis Network, had this first reaction to the bombing this Wednesday in Washington: "The left intimidated Judge Breyer into retiring and now they will demand a judge stamp their liberal political agenda.
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"And that's what the Democrats will give them, because they are beholden to the dark money supporters who helped elect them," Severino added.
Biden's past could come back to haunt him
The current Supreme Court nomination process is unusual in that the nominee will be chosen by a president who has been embroiled in contentious Supreme Court nomination battles.
Biden, as chairman of the Senate Judiciary Committee, was instrumental in blocking President Ronald Reagan's nominee, Judge Robert Bork, from the bench in 1987. Democrats criticized the ultra-conservative for what they saw as prejudiced views toward the rights of citizens. blacks and women.
But conservatives have long vilified Biden for his nomination loss and many of them date the hyper-politicized trend of nomination battles to that time.
Long-memory conservatives therefore have every reason to give Biden's first nominee a hard time in matchups that will attract right-wing media attention and claims of double standards if liberals complain.
That is the case even if Biden was heavily criticized from the left a few years after the confrontation with Bork for his treatment of Anita Hill, a law professor who alleged sexual harassment by Clarence Thomas, who has since gone on to be a conservative hero. in the Tribunal.
Some Republicans may also seek to repay a Democratic Supreme Court nominee for his treatment of Justice Brett Kavanaugh, who endured the toughest confirmation fight in decades.
Kavanaugh faced allegations of sexual misconduct dating back to the 1980s, which he forcefully denied in angry and emotional hearings before the Trump administration and McConnell secured confirmation of him.
Trump's refusal to leave the political scene is also likely to raise the political temperature around the hearings, as the former president is a master at seizing events that fuel his culture war narratives.
It is a sad commentary on the bitterness of the current age that the nomination of a black woman, in what promises to be a poignant moment in history, could also spark a racist and sexist debate.
It would not be surprising to hear accusations of symbolism against Biden from the most radical sectors of the conservative media ecosystem, while she tries to make history with her appointment to the high court.
Former President Barack Obama's first choice, Sonia Sotomayor, the first Hispanic woman to reach the highest court, attracted such prejudice despite her distinguished public and legal career.
Any Supreme Court nominee in the modern age should expect extraordinary scrutiny of their personal, financial, and professional lives.
But the interrogations of the first black woman nominated to the Supreme Court are likely to expose some of America's most enduring prejudices.
The judge who will be replaced by the new candidate, whoever he may be, is known for his temperance, moderation, courtesy and willingness to seek common ground with his ideological opponents.
Breyer is an anachronism in modern Washington, where those qualities are all but extinct.
That is why it is questionable that Biden, Congress, the court and the United States itself will come out with an improved reputation from a process that, in the end, can only worsen the national unrest.
US Supreme Court