Biden, Senate Democrats Can Replace Justice Stephen Breyer on Party Lines

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Supreme Court Justice Stephen Breyer during our interview in his office on August 27 in Washington, DC.
Supreme Court Justice Stephen Breyer during our interview in his office on August 27 in Washington, DC.

Supreme Court Justice Stephen Breyer during our interview in his office, in Washington, DC. Credit - Bill O'Leary—The Washington Post/Getty Images

Editor’s Note: The original version of this story incorrectly stated that Republicans could use Senate rules to block a Biden Supreme Court nomination. It was based on the author’s incorrect analysis of a May 13, 2021, Congressional Research Service report. The Senate will require a majority of votes to approve Justice Stephen Breyer’s replacement, not 60 votes.

With the news that Supreme Court Justice Stephen Breyer will retire when the current term ends this summer, President Joe Biden has the opportunity to nominate a replacement who can be confirmed in the Democratic-led Senate by a majority vote. Even if the Judiciary Committee breaks along party lines, the Senate-negotiated rules provide for a way to usher the new Justice to the bench.

“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,” said Senate Republican Lindsey Graham, a member of the Judiciary Committee, in a tweet Wednesday.

The Senate is split 50-50, with Vice President Kamala Harris breaking the tie. A 2013 agreement allows most presidential nominees to be confirmed with simple majority votes rather than a 60-vote, filibuster-proof margin. A 2017 update added Supreme Court nominees at that threshold. Under a power-sharing agreement reached a year ago between Senate Minority Leader Mitch McConnell and Democratic Leader Chuck Schumer, that bare-majority threshold still holds for Supreme Court nominees, according to a May 2021 report by the Congressional Research Service, Congress’ nonpartisan research institute. Biden pledged during the campaign that he would nominate a Black woman to the nine-Justice panel in an historic first.

“If Democrats stay united from the committee through the floor, there is nothing standing between the President’s pick and the bench. Every step requires a simple majority, which they’ll have,” says Matt House, a former top aide to Schumer.

“This should be a political win for Democrats,” says Alex Conant, a Republican strategist who worked in two Senate offices and counts others as clients. “The White House has an opportunity to reset the narrative and add to Biden’s legacy.”

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