OPINION: This article may contain commentary which reflects the author's opinion.
As reports noted earlier this week, Supreme Court Justice Stephen Breyer, a Bill Clinton nominee, is planning to step down, news that created a flurry of speculation as to who President Joe Biden will nominate to replace him.
But according to a report published Wednesday, thanks to a backroom deal, Senate Minority Mitch McConnell (R-Ky.) could theoretically stop Biden’s nominees from ever receiving a vote.
Under the current Senate rules, the ‘nuclear option’ is in play for all judicial nominees; that is, any of them can be appointed with a simple majority vote.
In the current 50-50 Senate, that means all Democrats would have to support the nominee and if no Republicans did, then Vice President Kamala Harris, as president of the chamber, would serve as the tie-breaker, giving the nominee 51 votes.
But that only occurs if the nominee makes it to the floor for a full vote, and for that to happen, the Senate Judiciary Committee would have to vote to advance the nominee to the full chamber.
“But the nuclear option can go into motion only if the Judiciary Committee reports the nomination to the floor, a procedural move that says whether a majority on the committee recommends the full Senate consider the pick,” TIME Magazine reported.
“Well, in a little-noticed backroom deal that took more than a month to hammer out, McConnell and Senate Majority Leader Chuck Schumer agreed to a power-sharing plan in February that splits committee membership, staffs, and budgets in half,” the magazine continued.
“If all 11 Republican members of the Judiciary Committee oppose Biden’s pick and all 11 Democrats back her, the nomination goes inert. The nomination doesn’t die, but it does get parked until a lawmaker—historically, the Leader of the party—brings it to the floor for four hours of debate,” the report added.
“A majority of the Senate—51 votes, typically—can then put debate about the issue on the calendar for the next day. But that’s the last easy part. When the potential pick comes to the floor again, it’s not as a nomination. At that point, it’s a motion to discharge, a cloture motion that requires 60 votes. In other words, 10 Republicans would have to resurrect the nomination of someone already blocked in the Judiciary Committee,” the report continued.
And so far, Senate Republicans (and some Democrats) have rejected the Biden administration’s most radical-left nominees including David Chipman to head the Bureau of Alcohol, Tobacco, Firearms and Explosives and Office of the Comptroller of the Currency nominee Saule Omarova.
Now, as for whether McConnell will exercise this option remains to be seen; the Kentucky Republican said Wednesday he will reserve comment and judgment until Breyer actually retires and the president forwards a nominee for the Senate’s advice and consent — or rejection.
“Breyer, 83, the oldest member of the court, was appointed in 1994 by President Bill Clinton,” The New York Times reported. “After the death of Justice Ruth Bader Ginsburg in 2020 and the appointment of Justice Amy Coney Barrett by President Donald J. Trump, he became the subject of an energetic campaign by liberals who wanted him to step down to ensure that Mr. Biden could name his successor while Democrats control the Senate.”
Fox News’ Shannon Bream initially reported that Breyer was “upset” when the news leaked out on Wednesday.
“Multiple sources tell me Justice Breyer was not planning to announce his retirement today,” Fox News anchor Shannon Bream wrote on Twitter. “They describe him as ‘upset’ with how this has played out. We still await any official notice from his office and/or the #SCOTUS public information office.”
A short while later, she added, “A bit more clarity. I’m told Justice Breyer had firmly decided on his own to retire and that an announcement was due very soon. And while it appears someone jumped the gun on that, better to characterize him as surprised by events today than ‘upset.’”
One name floated by Fox News as a potential nominee surprised many: VP Kamala Harris.