As a senator, he helped take down Robert Bork’s nomination in 1987. As chairman of the Senate Judiciary Committee in 1991, he presided over the contentious hearings that secured Clarence Thomas’ confirmation amid sexual harassment allegations. He watched Republican Senate colleagues force their own president, George W. Bush, to withdraw Harriet Miers from consideration in 2005.
And as vice president, he fumed as then-Senate Majority Leader Mitch McConnell, R-Ky. — using Biden’s own past words as a justification — refused to consider President Barack Obama’s nomination of Merrick Garland.
In other words, Biden has had more than a front-row seat for the evolution of the confirmation process from a relatively dramatic-but-dry “Advise and Consent” model to a modern blood sport made for viral video clips and “Saturday Night Live” spoofs. He’s been in the middle of the playing field for all of it.
At the same time, amid news that Justice Stephen Breyer plans to retire later this year, Biden is now sitting in the one spot — the Oval Office — where the stakes of a nomination fight are the highest. His choice seems destined to be among the most consequential of his presidency, as much for what it says to voters about his competence and savvy as for the legacy he hopes to build in appointing a liberal, and the first Black woman, to the court.
Biden finds himself mired in low approval ratings and facing a brutal list of crises, from Covid-19 to a possible Russian invasion of Ukraine. Some Democrats believe that a Supreme Court fight could help him regain traction, at least among Democrats and independents who have been bleeding away from him.
“The stakes are very high,” Ben LaBolt, a former aide to Obama, said. “President Biden comes to this having shepherded countless nominees through the Judiciary Committee as chair, needing to show that big-ticket items can still get through Congress, while ensuring that the Democratic base gets excited and mobilized for the midterms and independents see what’s on the line.”
“Supreme Court nomination battles have a way of clearing the decks of other political issues at least for a period,” LaBolt added, “and this is a chance to invigorate and reset sentiment.”
There is plenty of reason to think Biden faces a particularly tough challenge in getting a nominee confirmed before the Senate’s 2023 session starts, when there could be a Republican majority in place. He has struggled to get two senators in his own party — Joe Manchin, D-W.Va., and Kyrsten Sinema, D-Ariz. — to support major pillars of his domestic agenda, and he will probably need all 50 of his party’s votes to win a confirmation fight.
But there’s also justification for the optimism some Democrats expressed Wednesday. It is very rare for any senator to vote against a president of his or her own party on a Supreme Court pick. In recent years, Sen. Lisa Murkowski, R-Alaska, voted “present” on Brett Kavanaugh’s 2018 nomination — enough to register displeasure but not to threaten his confirmation — and then-Sen. Ben Nelson, D-Neb., bucked Obama in voting “no” on Elena Kagan in 2010.
But for the most part, senators have demonstrated a strong inclination to support their party’s president. That was true when most nominations were secured with bipartisan majorities, and it remains true now, at a time in which the confirmation process is among the most visible examples of Congress being locked in bitter, polarized partisanship.
“This is a situation where every Democratic senator has to know that for decades the impact will be felt,” said former Sen. Russell Feingold, D-Wis., who is president of the American Constitution Society, a group of liberal lawyers that will try to help Biden’s pick win confirmation. He added that he is “hopeful and optimistic” that the Senate will return to observing the norms of previous generations as it considers Biden’s eventual nominee.
But Republicans say Democrats treated their most recent nominees unfairly, and Sen. Lindsey Graham, R-S.C., has vowed to exact retribution.
“If this is the new norm, you’d better watch out for your nominees,” he said to reporters during Kavanaugh’s hearings.
Ron Bonjean, a Republican strategist who helped guide Neil Gorsuch to a successful Supreme Court confirmation vote in 2017, said the Senate hasn’t become more civil since then.
“The confirmation process has turned into a political campaign where either side is trying to define the nominee,” he said. “With the toxic environment that we’re currently living in, it’s hard to see how this would be a peaceful process.”
Amid the shouting, only one thing will really matter: whether Biden has the votes. Manchin, by far the most conservative member of his caucus, voted for two of then-President Donald Trump’s three justice nominations. But he voted with all Senate Democrats against Amy Coney Barrett in 2020.
At the time, he said he was objecting to the process, arguing that Republicans “chose a dangerous, partisan path” by holding a vote just a little more than a week before the 2020 presidential election.
That suggests Biden will have to pick a nominee who merits Manchin’s approval on substance and shape a process that satisfies the West Virginian.
But if there’s anyone in the Democratic Party who has the incentive — and should have the acumen — to secure a Supreme Court confirmation, it’s Biden.