WASHINGTON — President Joe Biden secured a legacy that is poised to outlast his time in office with the confirmation of Judge Ketanji Brown Jackson, 51, to the Supreme Court for life tenure.
But behind the joy and elation of putting the first Black woman on the court hovered a more daunting question: Could she be both Biden's first justice — and his last?
As the November elections edge closer, Senate Republicans are signaling the revival of hardball tactics, refusing to rule out a full-scale blockade against a Biden nominee for the remainder of his four-year term if a vacancy were to arise.
“I’m not going to go forward with any prediction on what our strategy might be should we become the majority,” Senate Minority Leader Mitch McConnell, R-Ky., told reporters this week, when asked if he’d commit to allowing a vote on a Biden nominee in 2023.
McConnell added that he can say “with pretty great certainty” that Biden, who “ran as a moderate” in 2020, would have to spend the next two years “being a moderate.”
It's far from clear whether Biden will have another vacancy to fill. The next-oldest liberal justice, Sonia Sotomayor, is 67. The oldest of the six conservative justices, Clarence Thomas, is 73. But if Biden gets that opportunity, it could all hinge on which party controls the Senate, raising the stakes for the 2022 midterm elections.
In 2016, McConnell blocked a vote on then-President Barack Obama’s nominee to fill a Supreme Court vacancy, a move that abolished a long-standing tradition that nominees receive a vote and laid the groundwork for the court’s shift to the right. Last year, McConnell refused to say whether he’d permit a vote in 2023 on a “normal mainstream liberal” picked by Biden if he's in charge.
White House chief of staff Ron Klain responded Thursday night on MSNBC: "It is not our plan to let Mitch McConnell make that decision in 2023. It's our plan to have Sen. Schumer be in charge of making the decision in 2023. I'm quite confident that if there's a Supreme Court vacancy, Majority Leader Schumer will make sure that person has a prompt and fair hearing."
At a Senate Judiciary Committee meeting on Jackson this week, Sen. Lindsey Graham, R-S.C., said in no uncertain terms Jackson would not have come before the panel if Republicans were in charge.
For Biden, it was a moment of elation after his team worked with the Senate to hold all 50 Democrats together and pluck three Republican senators, giving her 53 votes in the evenly split chamber — more than the last two Republican nominees received under larger majorities. He celebrated the moment with Jackson.
A White House official said Biden is planning to host an event on Friday "to commemorate Judge Jackson's confirmation."
Moments after the historic Senate vote Thursday, The Verve’s 1997 hit song “Bitter Sweet Symphony” could be heard outside the Senate chamber, playing loudly on a cellphone.
It captured liberals’ mixed feelings about the moment.
Despite the elevation of Jackson, the court will remain the most conservative in about a century, sustaining a 6 to 3 majority of Republican appointees expected to reshape American life by curtailing abortion rights and expanding gun rights, among other consequential decisions before the court this term.
“It’s legitimately a joyful moment for so many people,” said Brian Fallon, a former Senate leadership aide and the co-founder of the progressive advocacy group Demand Justice. “But there will be a cold splash of water in June — before she’s even sworn in. It’s going to be clear what we’re still up against. ... The top consideration needs to be doing something to blunt the unimpeded rightward lurch that the court is taking the country on.”
"It’s extremely important to hold the Senate," he said, advising Democrats to make the court a "political villain" when they run for office. "Democrats in general need to become more at ease with the idea of invoking the court as a foil and running against the court in the course of our campaigns."
The court's balance was a source of comfort to Republican leaders.
“The fact that there’s a conservative majority there — or at least a majority that shares our judicial philosophy — is something that, notwithstanding this addition, is reassuring,” Senate Minority Whip John Thune, R-S.D., told NBC News.
Thune, the No. 2 Republican, who is running for re-election in a safe red state, indicated that Biden would have a difficult time getting a Supreme Court nominee confirmed if his party were to win control, which it can do with a net gain of one seat.
"We'll cross that bridge if and when we come to it. Right now, the chances to get the majority are probably 50-50," Thune said. "It's going to be hard, because that's kind of the environment we're in. ... We're in a period where, particularly if you have divided government, those are going to be contentious and hard-fought."