Why Biden’s Supreme Court pick may be a safe choice and a non-factor in the midterms

Shannon Bream joined “The Ben Domenech Podcast” to discuss President Biden’s options for the Supreme Court and how the timing of Justice Breyer’s retirement impacts the midterm elections.

SHANNON BREAM: Well, really, I mean, he [President Biden] made the list so much shorter by saying specifically female, specifically African-American. And when you look for those who have been jurists and have the requisite experience you’d expect, it does give us a smaller frame of group of people that we’re looking at, for sure.

I do think if he had a bigger majority in the Senate, you may be swinging for the fences and the progressive groups who want to push for somebody who’s further left would have more voice in the White House. I don’t think they have a lot of room for that. I think that this being so deeply split, that’s going to definitely weigh in on the choice. You’ve got to get Joe Manchin’s vote; you’ve got to get Kyrsten Sinema’s vote.


But I will say that the woman and the jurist we expect is at the top of the list just went through the Senate last year and got three GOP votes in addition to the Democrats sticking together. So I think that makes a good argument for Judge Ketanji Brown Jackson because it’s going to be hard for Republicans to stand up and say, well, she was qualified last year, but now that she’s on the Supreme Court or could be not qualified. So, they’ve got a little bit of wiggle room.

I think that the White House is going to play for a moderate — acceptable, widely appreciated, and viewed as qualified individual versus doing something that would be a different pick like a Sherrilyn Ifill or someone who’s not been on the bench doesn’t have the same experience and is viewed as being much further left.

BEN DOMENECH: The political calculation there, too, is always kind of up in the air where, you know, we’ve seen these choices go through in the past and had all these arguments in Washington about how they were going to impact upcoming elections. And it really does seem that, with one exception, that they perhaps have not had as much of an impact — and that exception being, you know, Brett Kavanaugh and a pretty immediate polling backlash that a number of independent observers saw as being increasing Republican tempers and a lot of different states and perhaps, you know, flipping, you know, one, potentially two or even three Senate seats that were very close prior to everything that went down with his nomination. 

Do you believe that there will be any significant political fallout from the conceivable choices, assuming that the White House doesn’t go in to, you know, satisfy the progressives’ direction on this?

BREAM: You know, this is why I thought this announcement, if it was coming this year, would have been later because, you know, the confirmation battle, the nomination, all of that could be wrapped up by the end of the term when Justice Breyer says he’s going to retire, provided that his successor is, you know, firmly on track to be taking that seat.

To me, I thought if he was going to retire that it was going to be later this term because then that would give this summer for the Democrats to be out there saying this is why we need to hold the Senate. Look at this battle. This is why every seat counts. We got to have you show up. 

I thought it would make more political hay for them for any announcement about a retirement to come later. So that’s another reason that this seemed so early to me in January because I think it almost takes off the table this as a midterm issue because listen, you know, [this is] forever in politics. One month to month, three months — people have a very short memory, we will have 10 other issues or scandals by the time we get to November. 


But, you know, Kim Strassel wrote an interesting piece in the Wall Street Journal … kind of cautioning the White House, like, if you go radical with this pick and Republicans are able to make a fight or an issue out of it, you’re actually hurting yourself. And you’re going to fire up the Republican base to show up and take back the Senate in the fall. So I think there have to be political calculations. But this thing [Justice Breyer’s retirement] looks like, unless something goes really awry, it’ll be done so early. It may not really count as a midterm issue by November. 


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