The moment Supreme Court Justice Breyer announced his retirement (or when someone leaked it without his consent), the left started salivating. Finally, they had a chance to put one of their far-left socialists onto the highest court in the land.
There’s no doubt that Biden won’t pick a moderate to fill that seat, but whatever crackpot progressives pick for him.
But confirming a Supreme Court justice with a 50/50 Senate isn’t a slam dunk. If Republicans don’t believe a nominee is qualified—or they fear they are unfit for the job—they won’t vote for it. Democrats can only counter with 50 votes of their own.
Do you think Kamala Harris will step and break a tie? One of Biden’s legal advisers says that’s not allowed. From Western Journal:
“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,” [Liberal Harvard Law School professor emeritus Laurence Tribe] wrote.
Law adviser to Biden, Laurence Tribe, wrote in 2020 that the Constitution does not give the vice president the power to break a tie in the Senate—for judicial nominees. The vice president can only break a tie when it comes to passing legislation. This seems to mean that if it came down to 50 for and 50 against Biden’s pick, Harris has no power to tip the scales.
This becomes even harder if Biden takes the extraordinary step to nominate Harris as the replacement. Harris would be obligated to recuse herself from the final vote anyway, even if Democrats ignored Tribe and said she could break a tie. But the situation gets more difficult for Democrats, the longer you look at it.
The Senate Judiciary Committee is split 11-11. It would require at least one Republican to support a Biden nominee, in order for the entire Senate to confirm them. According to reports, if every Republican on the committee votes no, it would take Schumer getting 60 votes to overturn it. This means Schumer needs Republican support if he wants to get Biden’s pick on the bench.
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To make matters even worse (for old Joe), he vowed to nominate a black woman to the seat. According to some knowledgeable on the matter, there are technically only four women in the country that fit those parameters and have the experience to actually serve on the court (Harris isn’t one of them). Typically, a Supreme Court nominee that has a ghost of a chance has degrees in Law and served as a judge for many years.
Biden’s narrowed his talent pool tremendously by making this about race and gender. And that gives Republicans even more reason to block his pick.