Analysis: Another grueling Supreme Court battle is the last thing America needs — but it’s probably what lies ahead

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President Joe Biden’s first High Court pick will create a moment of promise for a struggling administration, offer Senate Democrats a much-needed boost to unity and could shatter another glass ceiling as Biden plans to appoint a black woman.

And despite their narrow Senate majority, it should be reasonably simple for Democrats to confirm a new justice quickly, without any Republican votes, before risking losing the chamber in the midterm elections.

A drama-free Supreme Court process could improve Congress’s tattered image, help a president whose approval ratings are plummeting and do some good for the tarnished reputation of a court increasingly enmeshed in politics. Biden also has some hope of garnering some Republican votes for his nominee. Maine Sen. Susan Collins, who voted for the final two justices seated by a Democratic president, told reporters on Wednesday there was no rush to confirm the eventual choice and called for a methodical vetting process. And since replacing Breyer, a liberal, won’t alter the court’s conservative 6-3 balance, it might look like the stakes are lower this time around.

But such hopefuls ignore the corrosive impact of recent nomination battles — which have ended with Democrats accusing the GOP of stealing seats and conservatives claiming candidates have suffered assassinations. Then there are legacy scars from deeper Supreme Court battles in the past, some involving the president himself, which may lead some conservatives to retaliate.

The political fury that raged through the fight against Covid-19 has meanwhile brewed a fetid political atmosphere not conducive to magnanimous hearings. And November’s midterm elections mean senators have a vested interest in performing in front of TV cameras in front of each party’s staunchest activist voters.

An ideological register breeds political discord

Another reason a smooth confirmation process is unlikely is the growing importance of the court itself in American political life. The idea that the Supreme Court is above politics has always been a myth. But dominating the high court has been a fundamental goal of the Conservative movement for several decades.

It is therefore not surprising that the successful campaign damaged the judges’ reputation for impartiality. And the new majority is being used in openly partisan ways, with Republican attorneys general seeking to fast-track cases through its Marbled Chamber on the most polarizing issues, including abortion, government powers to fight the pandemic and gun control. fire. Former President Donald Trump has tried to drag the court into his wild claims of voter fraud and the Jan. 6 insurrection investigation — two topics that have left him exposed to the bitter winds of partisanship.

All of this will set an even more politicized tone for the upcoming justice confirmation hearings. That could lead top senators on both sides to seek politically motivated assurances that could reinforce the impression that the court is now populated by partisans.

Today’s Supreme Court nominees are very well prepared and by their nature are able to dodge leading questions. But still, Republicans are likely to seek answers on issues like gun laws that the candidate will be wise to avoid. And progressive senators could ask a candidate at a hearing about their positions on abortion with Roe v. Wade, the landmark case asserting a woman’s right to terminate a pregnancy, besieged the Supreme Court. While such trades are unlikely to thwart a nomination, they will inevitably lead Biden’s pick onto dangerous ground.

Democrats get over it

The coming weeks will test the Democrats’ ability to get things done while controlling Washington.

Despite some early victories, a White House that showed up to fix problems and congressional Democrats developed a propensity to shoot themselves in the foot. Senate Majority Leader Chuck Schumer’s political tactics have come under increasing criticism following the blocking of Biden’s Build Back Better social and climate spending plan and Democratic voting rights bills. West Virginia Sen. Joe Manchin and Arizona Sen. Kyrsten Sinema, who were roadblocks on these bills, have never voted against a Biden judicial nominee, so it would be surprising if the coalition Democrat splits. But party leaders have learned the perilous nature of a 50-50 Senate majority. And an untimely death or serious illness among the elderly swathe of Senate Democrats could seriously delay or even jeopardize the confirmation process.
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Biden has a very effective weapon in his arsenal as he begins his selection process — his chief of staff Ron Klain, who orchestrated Supreme Court nominations in the Clinton and Obama administrations. Klain has faced criticism under the Biden administration as the White House stumbled, including over the pandemic and during the chaotic pullout from Afghanistan. The nomination is therefore an opportunity for him to revive his standing in Washington and offer the president a much-needed victory that could reinvigorate Democrats as a tough midterm election looms in November.

Republicans can still cause headaches

No fight for the Supreme Court nomination would be complete without the looming shadow of Republican leader Mitch McConnell. Since he’s in the minority, McConnell appears to lack the power to derail Biden’s top pick. But smashing Democratic Supreme Court hopes is his calling, and he’s used all sorts of procedural chicanery to seat a generational conservative majority on the top bench — arguably the greatest achievement of Trump’s presidency.

The wily Kentuckian and the conservative legal establishment that built the current court have the power to make the appointment of a new judge a painful ordeal. In a foretaste of the partisan fight to come, Carrie Severino, president of the Judicial Crisis Network, had this initial reaction to Wednesday’s Washington bombshell: “The left bullied Judge Breyer into retiring and now she will demand justice that endorses her liberal political agenda.”

“And that’s what Democrats will give them, because they’re indebted to the black money supporters who helped elect them,” Severino added.

Biden’s past could come back to haunt him

The current Supreme Court nomination process is unusual in that the nominee will be chosen by a president who has been embroiled in contentious battles for the Supreme Court nomination.

Biden, as chairman of the Senate Judiciary Committee, was instrumental in blocking President Ronald Reagan’s nominee, Judge Robert Bork, from court in 1987. Democrats blamed ultra-conservatives for what they considered prejudice towards black rights. Americans and women. But conservatives have long reviled Biden for his nomination loss and many date the hyper-politicized trend of nomination battles to this time. Conservatives with a long memory therefore have every reason to give Biden’s top nominee a hard time in matchups that will draw right-wing media attention and claims of double standards if liberals complain.
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That’s the case even though Biden came under heavy criticism from the left a few years after Bork’s confrontation over his treatment of Anita Hill, a law professor who alleged the sexual harassment of Clarence Thomas, who has since become a hero. curator in the field. .
Some Republicans may also be seeking revenge on a Democratic Supreme Court nominee for the treatment of Justice Brett Kavanaugh, who endured the hottest confirmation fight in decades. Kavanaugh faced allegations of sexual misconduct dating back to the 1980s, which he forcefully denied in emotional and angry hearings before the Trump administration and McConnell secured his confirmation.

Trump’s refusal to leave the political scene also risks raising the political temperature around the hearings, since the former president is a master at capturing the events that fuel his culture war stories.

It is a sad commentary on the bitterness of the current era that the nomination of a black woman, in what promises to be an emotional historical moment, could also spark a racist and sexist debate. It wouldn’t be surprising to hear accusations of tokenism against Biden from more radical sectors of the conservative media ecosystem as he seeks to make history with his High Court nomination. Former President Barack Obama’s first choice, Sonia Sotomayor, the first Hispanic woman to reach the top bench, has drawn such prejudice despite her distinguished public and legal career. In the modern age, any candidate for the Supreme Court should expect extraordinary scrutiny of their personal, financial and professional life. But the cross-examinations of the first black woman appointed to the Supreme Court are likely to underscore some of America’s lingering biases.

The justice that whoever the new candidate will replace is renowned for her temperance, moderation, courtesy and willingness to seek common ground with her ideological opposites.

Breyer is an anachronism in modern Washington, where such qualities have now all but disappeared. That’s why it’s debatable whether Biden, Congress, the court, and America itself will emerge with enhanced reputations from a process that, ultimately, can only worsen national funk.

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