In the days since Justice Stephen Breyer’s plan to retire went public, some Republicans have been putting out the word that they do not plan a big fight over his replacement. But it’s a mistake for them to stand down, especially before President Joe Biden has even announced a nominee.
Their impulse is understandable. Battles over Supreme Court nominations can be bitter and ugly. And this is one Republicans will probably lose. Democrats can probably maintain enough unity to confirm a nominee. Sens. Joe Manchin and Kyrsten Sinema may have angered their party over spending bills and the filibuster, but they have voted for Biden’s judges without any fuss.
Also, peace-minded Republicans reason, the stakes are low. Breyer’s replacement won’t change the balance of the court. Some Republicans, notably Lindsey Graham, hew to the old-fashioned view that presidents deserve deference on their judicial nominees so long as they demonstrate that they are competent, even-tempered and mainstream. He voted for both of President Barack Obama’s nominees to the Supreme Court.
He shouldn’t have. The norm of deference, which is nowhere in the Constitution, has inevitably and justifiably eroded as judges have assumed a greater and greater policymaking role and the parties have come to disagree sharply about that role.
That’s why past Republican efforts to sue for peace in the judicial wars have come to naught. After bruising fights over Republican nominees to the Supreme Court from 1987 to 1991, Senate Republicans largely voted to confirm Democratic nominees Ruth Bader Ginsburg and Breyer himself. But the next time Republicans had the White House, Democrats launched a series of filibusters against many of their judicial nominees. Each party blames the other for its role in a cycle of escalation and retaliation. But that cycle could hardly be averted once judges became such powerful forces in our politics.
Biden has said that any justice he appoints would satisfy a “litmus test” (he endorsed the phrase) on Roe v. Wade. They have to give him some sign, that is, that they will block legislatures’ attempts to regulate abortion — even though nothing in the text, original understanding or structure of the Constitution denies them that power, and even though constitutional scholars of varying views on abortion have scoffed at Roe’s reasoning.
The Constitution gives Biden the power to nominate anyone he wants to the high court. But it also gives senators the power not to be complicit in his decisions. Republicans who believe that judges should rule in a way that brings us closer to the actual Constitution, as nearly all of them say they believe, should have no qualms about exercising that power.
Roe itself may be overruled later this year. But the broader debate about judicial power will continue and evolve. It would be shortsighted for senators who like the current balance of the court to be complacent. The justices have life tenure, and they can spend years in the minority before casting a string of decisive votes.
And while it’s likely that anyone Biden nominates will get confirmed, it’s not guaranteed. Biden might misjudge the tolerance of Manchin and Sinema for a left-wing nominee, or the nominee might turn out to have unexpected vulnerabilities. The Democrats’ majority is so small that control of the Senate could conceivably flip any week.
Opposing confirmation should not mean searching for character flaws or scandals in the nominee’s past, or inventing them. It ought, however, to include making the case that a judge’s job, when interpreting and applying the law, is fundamentally a matter of obedience rather than invention. For example: When the people, acting through Congress, have decided to forbid universities that take public money from discriminating among applicants based on race, it is not a judge’s job to second-guess that decision.
This view of judging is sufficiently compelling to the public that even past Democratic nominees have felt obliged to voice it. During her own confirmation hearings in 2009, Justice Sonia Sotomayor insisted that judges should not “make law” — leading to widespread grumbling among progressives. Republicans ought to use this year’s hearings to further discredit any more grandiose conception of the judicial role.
Republicans should be eager to extend this debate, especially if the alternative is for the Democratic Congress to have extra time to pass lavish spending bills. It’s not as though Senate Republicans have something better to do with their own time than to engage on the core questions of self-government that Supreme Court nominations now raise.
Republican voters can’t reasonably ask Mitch McConnell and his Senate colleagues to defeat Biden’s nominee. They can reasonably ask them to try.
