Hocus Pocus SCOTUS
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In the aftermath of the failed nomination of Robert Bork, there are two kinds of Supreme Court nomination battles:
1. A president’s pick changes the balance of the High Court by replacing a Justice from the other tribe with a new Justice from the president’s tribe.
2. The president’s pick maintains the status quo, replacing a departed Blue with a new Blue, or a departed Red with a new Red.
Joe Biden will make history with his pick, and if a Black woman judge gets confirmed (in 2022 or 2023), she will likely be part of the fabric of the judicial branch for decades.
But this is a status quo pick which will maintain the Court’s 5-1-3 balance.
The Biden selection will almost certainly be someone at least somewhat to the left of Justice Breyer; Mr. Biden and Ron Klain are as experienced in the politics of Supreme Court nominations as literally any two people in modern American history, and they are not going to get Soutered with their selection.
But, again, not a single landmark case is going to have a different outcome with Biden’s Justice seated than it would if Breyer had stayed on.
So while this selection process is important, the breathless/hyped coverage we have seen for a day (and which will continue for some time) is not proportionate to the stakes.
Other stuff for you to say on your Zooms today:
1. Although prior presidents have taken demographics and diversity into account with their selections, this nomination is unprecedented in U.S. history – never has the holder of the Oval Office committed unambiguously to three extremely specific factors. Joe Biden will announce someone who is a Black female judge. That means the short list is not just short – it is finite, knowable, and predetermined.
2. Unless Ron Klain has lost his mind, the woman who is picked will vet across every dimension: she will have a sterling legal pedigree; she will not have any significant personal/financial/ideological or other such controversies; and she will have a compelling life story and family history that can be packaged up to the American people in a way that makes much of the country feel good both about President Biden’s judgment and about the woman he has selected.
3. If those bars get cleared (and, again, how could Biden/Klain make a pick and manage the process otherwise?), several things will then be true:
A. Democrats will be able to have hearings in the Judiciary Committee and a floor confirmation vote well before the midterms, maybe on a highly expedited timetable, as was done for Justice Amy Coney Barrett.
B. All 50 Democratic Senators will vote to confirm.
C. Anywhere from zero to about twenty-five Republican Senators will vote to confirm.
D. Progressives will swallow any concerns or disgruntlement that they have with the reality that Biden’s pick will not be as progressive as most (all?) recent Justices nominated by Republican presidents have been conservative.
E. No matter how solid the choice, this nomination as a political, media, and legal matter will interact with the pending Supreme Court decision on abortion in ways that no one on earth can possibly predict with any accuracy – or, at least, confidence. Same with the midterms and Democratic hopes there – there will be a lot of speculation about how this will rev the base(s) but nobody knows what it will mean.
F. A comically large percentage of the media coverage will have a tone suggesting the fate of the nomination hangs in the balance (and, again, that this swap out of Breyer will change not just the outcome of individual cases but the fate of the Republic and the real lives of real people), but neither of those things will ever be true, no matter how many twists and turns there might be.
4. Now, if Biden, Klain, and the vetters don’t do their jobs, and the person selected has some sort of vetting issue or another, then the course of the nomination (and how it impacts Mr. Biden’s job approval ratings and general political standing and use of bandwidth) are also impossible to predict. This could also happen if the nominee performs just horribly during her confirmation hearings.
5. Senator McConnell plays judicial confirmation politics as well as President Biden does. He knows that if (2) happens, the chances are very high that the Democrats will confirm a new Justice before the midterms. But he also knows that there is not zero chance that (4) happens; if Biden/Klain pick someone who runs into confirmation trouble, rest assured that McConnell will be ready to pounce, holding all of his Republicans against and trying to peel off at least one Democrat. Even on an accelerated time table, if Biden/Klain have to withdraw their first pick, chances are better than 50% that they would have trouble getting Choice #2 confirmed before the midterms, although it could still happen in the lame duck session, regardless of who will control the Senate majority come January of 2023. So: If McConnell can stop the person who Biden soon will nominate from being confirmed, he will. But he knows he probably can’t. The Red machinery that gears up to make money, get attention, and score points during all Supreme Court confirmation fights will indeed creak back into shape (as will the Blue machinery) but the operators of the machinery know this will all be for show if Biden does his job well. And they know the shape of the Court will not be impacted by the confirmation.
6. At the same time, McConnell and the Red team will do everything they can to gain political advantage from this process, a task that will be significantly harder if polls suggest the American people are, on balance, delighted with the Black female judge who is picked. Senate Republicans will try to slow down the process while trying to avoid any negative blowback for slowing down the process. The Red base demands that McConnell throw up some roadblocks – and the longer it takes the more chance there is for something to go wrong for Biden’s selection. There will be some breathless “a-ha!” moments with stories in the conservative blogosphere about various blasts from the nominee’s past writings/statements/record/etc, but these tales almost certainly won’t cross over into the Dominant Media in any meaningful manner.
In conclusion:
* If Biden/Klain pick well, we pretty much know how this movie ends (even if we can’t foresee every scene). There will be an emotional White House announcement, family introductions, long media profiles, historic and fascinating courtesy calls, much Collins/Murkowski/Romney/Manchin speculation, 10 million editorials, columns, and op ed pieces, and 30 million hours of cable news coverage and debate. And then, almost certainly, a confirmed new Justice who makes history and does absolutely nothing to change the balance of the Court. Justice Breyer is probably the least results-oriented member of the Court in the last generation, and/but he was results-oriented in about 95% of all divisive cases. There is a 95% chance that the Biden/Klain pick will be as results-oriented as Justice Kagan is – meaning, she will be part of a lot of passionate 6-3 and 5-4 minority statements until there is a new vacancy.
* If Biden/Klain pick poorly, no one (not even Biden, Klain, and McConnell) knows what happens next/eventually.
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ESSENTIAL READING
* The Washington Post breaking as well at this writing:
MOSCOW — A top Russian official warned Thursday that international tensions would be “seriously complicated” if the United States and NATO did not meet the Kremlin’s demand to bar Ukraine from joining the alliance, amid intensifying fears of a new Russian attack on its eastern neighbor.
Former Russian president Dmitry Medvedev, now deputy chair of the Russian Security Council, said no one was looking for war but that “we have practically exhausted the limits of retreat,” referring to NATO’s expansion into Eastern Europe from 1997. “They are now encroaching on our state borders.”
Senior Russian officials have not yet commented on written proposals by Washington and NATO, delivered late Wednesday, that spelled out their response to Moscow’s sweeping demands, including its ultimatum that the Western military alliance withdraw forces and equipment from former Soviet and Warsaw Pact countries. Ukraine is not a NATO member but the West has ramped up security cooperation with the country in recent years.
* Want to read the absolutely worst case for Democrats in the midterms?
Heres’s Henry Olsen’s Washington Post column:
Biden currently has a negative 14.4-point job approval rating on the RealClearPolitics average, a massive 18.9-point shift from 2020. If the 2021 trend holds firm and Biden doesn’t improve those numbers — and historical analysis from Inside Elections guru Nathan L. Gonzales suggests that’s unlikely — every Democrat in a district or state that he won by less than that amount could be seriously threatened. That includes seven Democratic senators up for reelection in 2022 — including Colorado’s Michael F. Bennet and Oregon’s Ron Wyden. Even Washington’s Patty Murray, already facing a well-funded challenger in Republican Tiffany Smiley, hails from a state Biden won by a bit more than 19 points. A 2021-style clean sweep on current polling data would give the GOP 57 Senate seats, more than any time since after the 1920 election. House Democrats could be looking at a loss of 60 members or more.
Past is not prologue, and it’s certainly possible that the 2021 results are not indicative of what will transpire in 2022. But if they are, and if Biden does not improve his job approval significantly by the fall, Democrats are looking at a wipeout unlike anything they have seen in a century.
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