The king is dead. Long live the queen. That’s not quite what the Dem-Libs were shouting when Supreme Court Justice Stephen Breyer announced his impending retirement — except, of course, the Biden administration didn’t have the decency to let him announce it; they did that themselves. They want to be sure he’s gone long before November.
But the scramble was on tout de suite, as Breyer, who taught himself French, might say. And now the hunt begins — not, of course, for the most qualified person, but only, of course, for a person who has the right qualifications, which are, of course, sex and color. That’s not speculation: Biden actually said it. Said he was going to do what would be illegal if you did it: hire on the basis of sex and color.
But what is sex? And what is color? Is Biden going to consider people who, whatever sex was assigned to them at birth or whatever color they may seem to be, identify as something else? Of course, he doesn’t actually have to select such a person, but if he doesn’t even consider such a person, isn’t he mockin’ the whole transie business? Who will call him on it?
What are the odds Biden’s nominee will get confirmed? About 100 percent. There can be poetic justice concealed there, or maybe just lying in plain sight: the less scrutiny there is, the more potential there is for future scandal. Maybe the woman nominated will be like the head of the Black Lives Matter movement, who turned out to be making out like a bandit — million-dollar houses everywhere. That’s the risk a hurried, ideologically motivated confirmation carries. Why should Republicans try to stop a Democrat train headed for a cliff?
Because it is almost certain that Biden’s choice will get confirmed, the only real question is what the process will be like.
The Democrats and the media (if you can tell them apart) are hoping and praying (to a non-religious god, of course) that the Republicans will make a Big Stink. A Big Stink would take the public’s attention off the Biden administration’s catastrophic management of … everything: from the crooked Hunter Biden laptop issue, to the catastrophic military withdrawal from Afghanistan, to the supply chain disaster, to the Jimmy Carter–era inflation, to vaccine mandates — to anything and everything Joe Biden touches.
The Senate, as everyone knows, is evenly divided between Republicans and Democrats. Remarkably, in the case of confirmation of presidential nominees to any position, the vice president technically cannot break a tie vote. In practice, however, the Senate allows the vice president to break ties when confirming nominees. Still, in theory, Biden’s nominee could fail to get a majority vote.
That is unlikely. At least one Republican senator, Romney, Murkowski, or Collins, is likely to vote for whomever Biden nominates.
So: if confirmation is assured, what should Senate Republicans, the non-Romney-Murkowski-Collins Republicans, do?
Before the nomination goes to the Senate for a vote, it has to be voted out of the Senate Judiciary Committee. The Republicans on the Judiciary Committee should ask polite but pointed questions designed to bring out what, if anything, the nominee believes, and show how outré (another Breyer word meaning bizarre, far out, screwy, wacky) she is. Each of the 10 members should certainly ask her what she thinks about Biden’s efforts (including using the filibuster) to keep Janice Rogers Brown (a black woman) from being confirmed in 2005 to a seat on the U.S. Court of Appeals for the D.C. Circuit. They should make their points, establish a record, and then quietly and orderly vote not to recommend that the nomination go forward. No grandstanding. No hysterics. Just orderly disagreement.
There are 10 Republicans on the committee and 10 Democrats, but almost certainly one of the Republicans will vote the nominee out of committee. Then the nomination goes to the full Senate, where the nominee is almost certain to be confirmed. End of story.
What a disaster for the news-hungry Democrats. And for the left-wing, woke media. No ranting and raving at Republicans for being anti-black and anti-woman.
The only downside is the reaction of the Republican “base,” especially the conservatives. They might well be disappointed not to see the fight of the decade, not to see Republicans fight like … like Democrats. But Republicans would never stoop to the level the Democrats did in the confirmation battles over President Donald Trump’s nominees. That’s just not who they are — and quite properly so.
And there would be no point. Even if they succeeded in defeating the nomination, the next one would be just as bad. It’s true, the Senate may — may well — become Republican after the elections in November. But Biden could send up four or five more nominations before then — and they wouldn’t be any better, and they’d probably be worse — and there isn’t any way the Republicans could defeat them all. And even if they did, is that the record — rejecting five black women candidates — they want to run on?
The new queen is likely to be far to the left of the old king. But for now, it won’t make much difference: the balance of the court won’t shift — Trump saw to that. The real battle takes place in November.
Daniel Oliver is Chairman of the Board of the Education and Research Institute and a Director of Pacific Research Institute for Public Policy in San Francisco. In addition to serving as Chairman of the Federal Trade Commission under President Reagan, he was Executive Editor and subsequently Chairman of the Board of William F. Buckley Jr.’s National Review.
Email Daniel Oliver at Daniel.Oliver@TheCandidAmerican.com.