The announcement Wednesday that 83-year-old Supreme Court Justice Stephen Breyer will retire comes as something of a relief to Democrats, many of whom are worried that their chances of replacing him with a liberal justice would be dashed if they lost control of the Senate in the 2022 midterm elections.
But much still has to play out in Washington, where partisan tensions are ratcheted up during Supreme Court confirmation hearings, before the party can celebrate not losing further ground to conservatives on the high court.
The White House confirmed Wednesday that President Biden will nominate a Black woman as his first pick to the court, but, as with nominees for any high office, the journey from being picked to being confirmed to the Supreme Court can be difficult. Here are the key political players who will help determine how smooth, or rough, the nominee's path will be.
White House chief of staff Ron Klain
The president's chief of staff is well versed in Supreme Court nomination battles and will play a central role in deciding who will be nominated to replace Breyer. A former Supreme Court law clerk, Klain served as chief counsel to the Senate Judiciary Committee from 1989 to 1992, working closely with Biden, the then chairman of the committee, during the explosive confirmation hearings for Justice Clarence Thomas. Klain worked in Bill Clinton's White House as associate counsel to the president, overseeing his judicial nominations, including that of Justice Ruth Bader Ginsburg.
25 yrs ago today: the FIRST mtg w @BillClinton on picking his FIRST nominee to #SCOTUS. On the "short list" (in @algore's hand) is the name of the woman Clinton ultimately selected: Ruth Bader Ginsburg (#NotoriousRBG) pic.twitter.com/6nzjkBkC1m
— Ronald Klain (@RonaldKlain) March 20, 2018
Klain also advised President Barack Obama on picking Justices Sonia Sotomayor and Elena Kagan. In fact, Klain's experience with navigating Supreme Court picks has been cited as perhaps the most important reason he was chosen for the chief of staff role.
Senate Majority Leader Chuck Schumer
At least until the midterm elections in November, Democrats are clinging to a razor-thin majority in the U.S. Senate, which will decide whether Biden's nominee will be confirmed to the high court. Under current Senate rules, the president's pick needs just 51 votes to be confirmed. With the chamber split evenly — 50 Democratic senators and 50 Republicans — Vice President Kamala Harris would break a tie vote on the nomination. As majority leader, Schumer will be in charge of setting an aggressive timetable, both in the Judiciary Committee and for a vote on the Senate floor, for confirming whomever Biden selects to replace Breyer.
"President Biden's nominee will receive a prompt hearing in the Senate Judiciary Committee, and will be considered and confirmed by the full United States Senate with all deliberate speed," Schumer said in a statement Wednesday.
Senate Minority Leader Mitch McConnell
In June 2021, McConnell announced he would seek to block Biden from naming a justice to the high court in 2024, under the rationale that it was too close to the presidential election. (This concern did not stop McConnell from confirming Justice Amy Coney Barrett, appointed by then-President Donald Trump, a fellow Republican, just before the 2020 election.) McConnell did not commit to giving a hypothetical Biden nominee a vote in 2023 either. While Democrats decried those statements as arbitrary, they also added pressure on Breyer to retire before 2023. Assuming the Senate Judiciary Committee hearings go without a major hitch, and Democrats stay united in support of the nominee, McConnell lacks the votes to block her confirmation. But those are two big ifs.
Attorney General Merrick Garland
While the principal duty of an attorney general of the United States is to "represent or supervise the representation of the United States Government in the Supreme Court of the United States," they also counsel presidents on whom to pick to fill vacancies. That responsibility now falls to Garland, whose own nomination by Obama to the high court in 2016 was blocked by Senate Republicans, led by McConnell, because of the impending election.
"The American people are perfectly capable of having their say on this issue, so let's give them a voice. Let's let the American people decide," McConnell, explaining his rationale for the new standard, said on the Senate floor. "The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be."
That experience was bitter for both Biden and Garland, and now they will now work together on picking a nominee they hope won't be denied confirmation to the high court, let alone a vote.
Senate Judiciary Chairman Dick Durbin
Durbin, D-Ill., has served on the Judiciary Committee for 22 years, participating in seven Supreme Court confirmation battles. In his first as chairman, however, he will be tasked with the delicate role of keeping the nomination on track through a protracted hearing in which the opposing party will question and seek to expose flaws or scandals that could turn the tide against the nominee. Durbin's job will be to maintain order and leave the public with the perception that the inevitable attacks on the nominee are either unwarranted or partisan in nature.
“I look forward to moving the president’s nominee expeditiously through the committee," Durbin told reporters on Capitol Hill on Wednesday. Whether he will be able to achieve that remains to be seen.
Sen. Joe Manchin
Fresh off refusing to join his party's attempt to bypass the filibuster to pass the John Lewis Voting Rights Act, Manchin, D-W.Va., now becomes something of a question mark for Democrats who need his vote to confirm Biden's Supreme Court nominee.
On Wednesday, Manchin said he looked forward to evaluating the qualifications of the president's pick.
“I take my Constitutional responsibility to advise and consent on a nominee to the Supreme Court very seriously," Manchin said in a statement. "I look forward to meeting with and evaluating the qualifications of President Biden’s nominee to fill this Supreme Court vacancy.”
The question is whether Manchin will find Biden's pick to be too liberal for his liking. From blocking the Build Back Better spending bill to nixing changes to the filibuster, the staunch centrist has shown no reluctance to take on Biden and his party.
"I would like to hope that there are still Democrats that feel like I do," he recently told a Virginia radio station. "Now, if there's no Democrats like that, then they'll have to push me wherever they want me."
Sen. Kyrsten Sinema
Another Democrat who may worry the Biden administration is Sinema of Arizona. Like Manchin, she has refused to go along with the idea of ditching the filibuster, drawing a censure resolution from Arizona Democrats as a "result of her failure to do whatever it takes to ensure the health of our democracy."
With liberal donors abandoning Sinema, members of her own party voting to censure her and tensions with colleagues in Washington, the timing of the Supreme Court nomination fight comes at a precarious time.
On the other hand, Sinema, who has called John Lewis her "hero," may also be looking for a way to bridge the divide with her party. Voting in favor of Biden's nominee would certainly be a start, while voting against her could spell the end of a tenuous relationship.
Sen. Susan Collins
A frontrunner for the pick to fill Breyer's seat is U.S. Court of Appeals Judge Ketanji Brown Jackson, who has already been confirmed in the Senate. Collins, R-Maine, was one of three members of her party to vote to confirm Jackson to the D.C. Circuit Court. A pro-abortion-rights Republican whose measured questioning and votes to approve the confirmations of Justices Amy Coney Barrett and Brett Kavanaugh have been criticized by abortion rights advocates, Collins won reelection in 2020, meaning she will not face the heat of another campaign until 2026. Biden's nominee will be pro-abortion-rights, potentially putting a yes vote from Collins in play.
Sen. Lisa Murkowski
Along with Collins and Sen. Lindsey Graham, R-S.C., Murkowski, R-Alaska, voted to confirm Jackson to her current position on the federal bench. Unlike Collins, she is up for reelection this November. Another centrist, Murkowski already has a primary challenger, who has been endorsed by former President Donald Trump following Murkowski's decision to support his impeachment for "incitement of insurrection" stemming from the Jan. 6, 2021, riot at the U.S. Capitol. Murkowski is pro-abortion-rights and was ranked by the New York Times as the second most liberal Republican. If either she or Collins were to support Biden's nominee, it would give the Democrats much-needed breathing room.
Cover photo: Drew Angerer/Getty Images