By Charles C. W. Cooke
Wednesday, January 26, 2022
The New York Times reports that Justice Breyer
intends to retire from the Supreme Court at the end of this term. If President
Biden can pick a nominee who is palatable to the 50 senators who caucus with
his party, he will be able to replace Breyer fairly quickly. Despite the fact
that this will mean swapping Breyer for a younger non-originalist justice (not
great, Bob!), I can think of at least four reasons that this is better news for
conservatives than it might at first seem.
Reason One: Breyer is a non-originalist who will
be replaced by another non-originalist. It would, of course, be much better for
America were Breyer to be replaced by an originalist, but his retirement will
not substantially change the makeup of the Court, and, in all likelihood, it
will make things marginally worse for the “living
constitution” brigade. If, as seems likely, Biden chooses a bomb-throwing hack
in the mold of Justice Sotomayor, he will end up further marginalizing the real
talent within the “living constitution” wing, Elena Kagan, and creating more
distance between her and her originalist (and originalist-adjacent) colleagues.
As a practical matter, the non-originalists’ best tactic is to anchor its
positions around Kagan in the hope that, from time to time, she can persuade
Justices Roberts and Kavanaugh to agree to the narrowest available holding.
Already, Sotomayor makes this difficult. Adding a second unmoored lunatic in
Breyer’s place would make it more difficult still. Often, the progressive
movement’s cynical approach toward the Constitution pays dividends. In our
current 6-3 environment, however, it may not. The more space there is between
John Roberts and the median progressive justice, the weaker the progressives
become.
Reason Two: Joe Manchin will probably end up
voting for President Biden’s pick, but he will have to spend some political
capital doing so. That is capital that he will not be able to spend supporting
a pared down version of “Build Back Better,” or whatever else Biden can dream
up before the midterms. Like Susan Collins, Manchin will be afforded some
wiggle-room by his broad willingness to defer to presidential picks (he voted
for Gorsuch and Kavanaugh), but he will not be afforded enough wiggle-room to
do this and acquiesce to a reconciliation bill that is deeply
unpopular in his state.
Reason Three: Republican voters tend to be more
motivated by the makeup of the Supreme Court than Democratic voters. On
balance, having a high-profile Supreme Court fight right before the 2022
midterms is likely to help Republicans in a number of the close Senate races
they must win to win back the majority, pull the gavel away from Chuck Schumer,
and control any subsequent nominations that arise while Joe Biden is president.
Reason Four: If, as seems possible, the Court
overturns Roe v. Wade this summer, the vacancy created by
Breyer’s retirement will force Democrats to channel their anger into the push
to replace him instead of into some quixotic attempt to “pack” (read: destroy)
the Supreme Court. It would be near impossible for a Democratic Party in
possession of an unstable 51-50 Senate majority to hold hearings for a new
justice while publicly proposing turning the Court into a legislature. The
primary purpose of Supreme Court hearings is to convince the public — and the
Senate — that the nominee in question is a respectable, qualified,
disinterested professional who deserves an appointment for life. One cannot do
that at the same time as one is advertising a naked power grab.
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