Supreme Court Justice Stephen Breyer’s impending retirement gives PresidentJoe Biden one of the most prized opportunities any president has: a chance to nominate a Supreme Court justice who will likely serve long after he has left the White House.
But given that Democrats have only a 50-seat majority with Vice President Kamala Harris as the tiebreaker, many of them are probably already dreading how conservative Democratic Sens Joe Manchin of West Virginia and Kyrsten Sinema of Arizona would vote.
Democrats especially can’t be too optimistic after Mr Manchin effectively killed Mr Biden’s proposed Build Back Better bill, while Ms Sinema opposed raising taxes in the legislation and both voted to keep the filibuster in place, killing Democrats chances of passing a new Voting Rights Act.
But Mr Manchin seemed to indicate in an interview with West Virginia MetroNews' Hoppy Kercheval that he would be ok with voting for someone more liberal than he is, Politico reported.
“It’s not too hard to get more liberal than me,” Mr Manchin said. “Whoever he puts up will have experience and we'll be able to judge them off of that. But as far as just the philosophical beliefs, no, that will not prohibit me from supporting somebody.”
Mr Manchin, ever a mercurial figure, released an anodyne statement that must not have inspired much confidence among liberal judicial watchers.
“I take my Constitutional responsibility to advise and consent on a nominee to the Supreme Court very seriously,” Mr Manchin tweeted. “I look forward to meeting with and evaluating the qualifications of President Biden’s nominee to fill this Supreme Court vacancy.”
That likely makes liberals’ blood curdle, especially given the fact Mr Manchin voted for two of Donald Trump’s judicial nominees – Neil Gorsuch and Brett Kavanaugh. Similarly, in 2013, Mr Manchin was the only Democrat to vote against invoking the “nuclear” option to allow for lower-court judicial nominees to pass with a simple majority vote.
But there are some signs that Democrats don’t need to sweat.
First, while Mr Manchin was not a Senator when Barack Obama nominated Sonia Sotomayor or Elena Kagan, he voted for many of Mr Obama’s judicial nominations – though he did vote against a few of them. Both Democrats voted to confirm Ketanji Brown-Jackson, likely the frontrunner to replace Mr Breyer, and who would allow Mr Biden to fulfil his promise to nominate a Black woman to the Supreme Court.
Similarly, Ms Sinema, as much as she may frustrate Democrats, is vocally supportive of abortion rights and has argued ditching the filibuster would allow for Republicans to run roughshod on reproductive freedom.
Republicans have already begun to line up their opposition to whomever Mr Biden nominates, which makes sense given the importance of the court in conservative politics and the outsize role of outside groups like the Federalist Society. That makes Mr Manchin and Ms Sinema’s votes all the more necessary.
But Democrats likely do not need to worry given both of their record on the courts.
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