The Democrats are facing a grim November if they can’t find some way to energize their increasingly disillusioned base. Consequently, they regard the retirement of Justice Stephen Breyer from the Supreme Court as a golden opportunity to rekindle enthusiasm among their voters. President Biden, having already committed to replacing Breyer with an affirmative action hire, is all but certain to nominate a far left radical in order to provoke a confirmation brawl with the GOP as the midterms approach. The Republicans, however, have little to gain by trading punches in such an altercation. They would be wiser to employ a “rope-a-dope” strategy.
Biden will come out swinging with a nomination from the “Demand Justice” shortlist of leftist nominees — probably D.C. Circuit Judge Ketanji Brown Jackson — and Senate Democrats will respond to the most innocuous questions with cries of “racism.” If the Republicans take the rope-a-dope route, the Democrats will fail to land a serious political punch, and the ideological balance of the Court will remain static. It will nonetheless require restraint to remain this passive, particularly if Biden does choose Jackson, whose record includes a 2019 ruling (later reversed) wherein she gratuitously attacked then-President Trump:
Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.… Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States.… It is hard to imagine a more significant wound than such alleged interference with Congress’ ability to detect and deter abuses of power within the Executive branch for the protection of the People of the United States.
It will be difficult indeed for Republican members of the Senate Judiciary Committee such as Sen. John Kennedy (R-La.) to refrain from asking Judge Jackson how she managed to work her way from an arcane legal question concerning the validity of a subpoena to the hopelessly trite observation that the President isn’t a monarch. But Senator Kennedy’s folksy delivery won’t be easy — even for the Democrats — to characterize as race-baiting, and would help to disarm a Democratic Senate majority bent on picking a fight they primarily need for purposes of generating memes for Twitter and sound bites for the legacy media.
The Republicans have little chance of peeling off any Democratic Senators, as they did in the battles over the Build Back Better Act or filibuster “reform.” Even Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) have been reliable “yes” votes on Biden’s judicial nominees. That is unlikely to change. Moreover, even if no Republican Senator supports Biden’s SCOTUS nominee, Vice President Harris can break a 50-50 Senate tie. She has already cast 15 such votes. So she can cast a tie-breaking vote on a SCOTUS nominee. Or can she? In 2020, Harvard law professor Laurence Tribe declared such a vote unconstitutional:
While the vice president has the power to cast a tiebreaking vote to pass a bill, the Constitution does not give him the power to break ties when it comes to the Senate’s “Advice and Consent” role in approving presidential appointments to the Supreme Court.… You don’t have to take my word for it. Alexander Hamilton said the same thing way back in 1788.… But there is much more to this than historical practice. Giving the vice president tiebreaking power over judicial appointments would also break the Framers’ careful constitutional structure.
The problem with this opinion should be obvious. Professor Tribe is a far left Democrat and his constitutional opinions have been known to “evolve” on such matters, depending on which party is in power. The above was written when Trump and Pence were in office, of course. Now that Biden and Harris have replaced them, he’s already hedging: “I’d need to read what other scholars have written criticizing my 2020 view in the interim if the issue becomes relevant.” It’s a good bet that, in a pinch, Tribe would be eminently persuadable by “what other scholars have written” if the Democrats stood to benefit from his open mind.
Another wrinkle in the process involves the absence of a fiftieth Democratic vote in the Senate. On Tuesday the Wall Street Journal reported, “Sen. Ben Ray Luján (D., N.M.) suffered a stroke and had surgery to ease swelling in his brain.” If Luján’s endures a protracted recovery, it will clearly complicate confirmation of a controversial SCOTUS nominee. There are, however, moderate jurists who meet Biden’s race and gender criteria yet would be confirmed with bipartisan support. The most obvious is U.S. District Court Judge J. Michelle Childs. Sen. Lindsey Graham (R-S.C.) heaped praise on Judge Childs last Sunday:
Here’s what I will tell [Biden] and the nation: I can’t think of a better person for President Biden to consider for the Supreme Court than Michelle Childs. She has wide support in our state, she’s considered to be fair-minded, a highly gifted jurist — she’s one of the most decent people I’ve ever met.… She’s highly qualified, she’s of good character, and we’ll see how she does if she’s nominated, but I cannot say anything bad about Michelle Childs.… Michelle Childs is incredibly qualified. There’s no affirmative action component if you pick her.
But Judge Childs fails to meet the one qualification that Biden and the Democrats badly need in a Supreme Court nominee. She is not a radical and her nomination will not generate the kind of sound and fury they need to turn out their base in the midterms. Complicating matters further, House Majority Whip James E. Clyburn (D-S.C.) also backs Childs. He doesn’t technically have a vote on her confirmation, but his support matters. It is no exaggeration to say that Biden owes his presidency to Clyburn, who exhumed the former’s campaign in the 2020 South Carolina primary. Will Biden cross a man to whom he owes so much? Yep.
Biden has little choice but to nominate one of the radical judges supported by the far left-wing of his party. He and the Democratic leadership desperately need a knock-down-drag-out with the GOP in order to rile up their base enough to turn out in November. They will portray the confirmation process as a right-wing lynch mob and the corporate media will collude with them by providing deceptive video and sound bites. But if the Republicans pursue the “rope-a-dope” strategy, the Democrats will never lay a glove on them. The “Party of Jefferson and Jackson” will stumble exhausted to defeat in the midterms.