Law/Justice

The Senate battle to replace Stephen Breyer will get ugly

By W. James Antle III, The Week

In a different world, Senate Republicans could let President Biden fill the vacancy created by Justice Stephen Breyer’s retirement from the Supreme Court. Conservatives would still enjoy a 6-3 majority. Wednesday’s news did not create a situation like the deaths of Justice Antonin Scalia and Ruth Bader Ginsburg, where the balance of the court was in play. Whatever is going to happen this year with abortion, affirmative action, and a dozen other hotly contested issues remains just as likely to happen. And the next presidential election is over two years away, so there is no Justice Neil Gorsuch repeat coming soon.

We do not currently live in that world. Breyer’s own confirmation tells us this: Just nine Republicans voted against him in 1994. That would be unthinkable today. Conservative groups would run ads against the Breyer Nine during the primary season. An even starker illustration of how political norms on judicial nominations have changed: Scalia was unanimously confirmed in 1986, a little over a year before Robert Bork’s rejection by the Senate set us on the current trajectory.

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