Sen. Josh Hawley (R-Mo.) is warning Democrats to “expect a major battle” in the Senate if President Joe Biden tries to nominate a “woke activist” to Supreme Court Justice Stephen Breyer’s soon-to-be-vacant seat.
Breyer was nominated to the Supreme Court (SCOTUS) by President Bill Clinton nearly three decades ago. On the court, Breyer has generally leaned to the left in his decisions, though he has rejected recent proposals among Democrats to pack the court.
In April 2021, Breyer warned against any such scheme, arguing that it could erode public trust in the judicial system. More recently, Breyer wrote in his book, “The Authority of the Court and the Peril of Politics,” that advocates of adding seats to the court should “think long and hard before embodying those changes in law.”
A slew of retirements and deaths during President Donald Trump’s term allowed Republicans to gain a substantial edge in the nation’s highest court, and many liberals have long been anxious to avoid the same happening to Breyer’s seat. Breyer, now an octogenarian, has been pressured for some time to step down and allow a younger liberal appointee to take his place.
On Jan. 25, Breyer acceded to the request and announced that he would step down at the end of the court’s term this summer.
Breyer’s announcement kicked off a flurry of speculation about who might be chosen to take the seat.
During the 2020 election season, Biden vowed to appoint a black woman to SCOTUS if elected. Following Breyer’s announcement, White House press secretary Jen Psaki told reporters that Biden was standing by the pledge.
But Republicans are warning Biden that he will face a tough confirmation fight if his pick is radical.
On Twitter, Hawley urged Biden not to pick a “woke activist” to replace Breyer.
“Moment of truth for Joe Biden,” Hawley wrote in a Twitter thread. “Will this deeply unpopular and divisive president finally reject the radical elements of his party and nominate someone who loves America and believes in the Constitution? Or will he continue to tear apart this country with a woke activist?”
“If he chooses to nominate a left wing activist who will bless his campaign against parents, his abuse of the FBI, his refusal to enforce our immigration laws, and his lawless vaccine mandates, expect a major battle in the Senate.”
In recent years, Senate battles over SCOTUS nominees have become increasingly heated and ever more partisan.
When Breyer was nominated in 1994, 87 lawmakers voted in favor of his confirmation while only nine opposed it.
This bipartisanship continued into President Barack Obama’s tenure in office. After Justice David Souter announced his retirement in 2009, Obama nominated Sonia Sotomayor to take his place. Though Sotomayor’s nomination was more controversial than others had been in the past, she still managed to win confirmation by a bipartisan 68–31 vote.
But by the Trump era, this bipartisan attitude toward SCOTUS nominees had all but vanished.
During the Senate’s confirmation hearings for Brett Kavanaugh, whom Trump nominated to replace retiring Justice Anthony Kennedy, Democrats painted the Yale Law graduate as a rapist on the basis of unsubstantiated claims made by a California professor. According to his accuser, Dr. Christine Ford, Kavanaugh and friends raped Ford during a party in the 1980s.
Despite a dearth of evidence to back it up, Democrats accepted the claim wholeheartedly, turning Kavanaugh’s confirmation into one of the most controversial and heated in U.S. history. Kavanaugh was ultimately confirmed by a paper-thin 50–48 margin. Two Republicans, Sens. Lisa Murkowski (R-Alaska) and Steve Daines (R-Mont.), didn’t vote for the nominee while only one Democrat, Sen. Joe Manchin (D-W. Va.) did.
The confirmation hearings of Amy Coney Barrett, whom Trump nominated following the death of Justice Ruth Bader Ginsburg, were less personal but her nomination still caused an outcry among Democrats and their liberal allies.
Barrett was confirmed by a party-line vote of 52–48. Sen. Susan Collins (R-Maine) joined every Senate Democrat in voting against her, making Barrett the first SCOTUS nominee in history to be confirmed with no support from the minority party.
This trend toward increasingly partisan SCOTUS battles is unlikely to change in the near future, whoever Biden nominates.
One recent Biden nominee gives some indication of Biden’s attitude toward judicial appointments. In early December 2021, the Democratic Senate voted along party lines to confirm Biden-nominated Rachael Rollins, whom Sen. Ted Cruz (R-Texas) described as a “left-wing prosecutor,” to the position of U.S. Attorney for Massachusetts.
Before being nominated as U.S. attorney, Rollins served as the district attorney (DA) for Suffolk County, Massachusetts. As DA, Rollins refused to enforce a laundry list of laws. These un-enforced laws included larceny, shoplifting, trespassing, disorderly conduct, driving with a suspended license, and even possession of hard drugs with intent to distribute.
Cruz revealed these findings on the Senate floor before Rollins’s confirmation vote, urging Democrats to oppose the nomination. Nevertheless, all 50 Democrats—including moderates Manchin and Sen. Kyrsten Sinema (D-Ariz.)—voted to confirm Rollins, allowing Vice President Kamala Harris to use her tie-breaking vote and confirm Rollins with no Republican support.
It isn’t yet clear who Biden will nominate to take Breyer’s place. However, if Biden tries to nominate someone considered too radical to the high court, he could find himself blocked by swing-voting Manchin.
In any event, Hawley’s warning on Twitter makes clear that Biden will certainly face opposition from Republicans if his final pick is too radical, setting the stage for a tough fight in the Senate later this year.