IE 11 is not supported. For an optimal experience visit our site on another browser.

Senate Democrats eye speedy confirmation process to replace retiring Breyer

Sen. Chuck Schumer said Biden's nominee will get a "prompt" hearing and be "confirmed by the full United States Senate with all deliberate speed."
Get more newsLiveon

WASHINGTON — Senate Democrats are vowing to move quickly in the coming confirmation battle over the Supreme Court seat expected to be vacated by Justice Stephen Breyer this summer.

“President Biden’s nominee will receive a prompt hearing in the Senate Judiciary Committee, and will be considered and confirmed by the full United States Senate with all deliberate speed," Senate Majority Leader Chuck Schumer said in a statement Wednesday.

Biden promised during his campaign to nominate a Black woman with the first vacancy, and liberal senators quickly called on him to fulfill that promise.

Democrats run the 50-50 chamber with the tie-breaking vote of Vice President Kamala Harris. That gives them control of the Judiciary Committee, where hearings are likely to take place, and the Senate floor, where any nominee will face a final vote on Biden's eventual nominee.

NBC News reported on Wednesday that Breyer intends to retire at the end of the term. The Supreme Court did not immediately announce his plans, but Biden and Breyer are scheduled to appear together at the White House Thursday as the Supreme Court justice is set to announce his retirement, a source familiar with the matter confirmed to NBC News.

Confirming a Supreme Court pick requires a simple majority, meaning Democrats could approve a nominee without Republican support if they stay united. The 60-vote Senate rule was abolished for high court picks in 2017.

Senate Democrats are aiming to confirm any Biden Supreme Court nominee on a similar time frame as Republicans used to confirm Justice Amy Coney Barrett, according to a Democratic source familiar with leadership’s thinking.

Barrett was confirmed in 27 days — a much faster process than is typical for nominees — on the week before the 2020 presidential election. Before her, Justice Brett Kavanaugh was confirmed in 88 days and Justice Neil Gorsuch in 65 days. The historical average from nomination to final Senate vote is 67 days, according to the Congressional Research Service.

The Senate can begin processing the nominee before the seat is vacated, a Democratic aide said, adding that Biden would simply need to wait to officially appoint his pick until Breyer's retirement becomes official.

While Democrats have sole power to execute confirmation hearings — like Republicans did under President Donald Trump — it is still likely to be a pitched battle. After a nominee is named, opposition groups typically work to dig up dirt on the individual and Republican senators can be expected to try to leverage that research to gin up opposition among their voters.

"I look forward to moving the President’s nominee expeditiously through the Committee," said Senate Majority Whip Dick Durbin, the chair of the Judiciary Committee.

While Sens. Joe Manchin, D-W.Va., and Kyrsten Sinema, D-Ariz., have broken with their party on major legislative ambitions, they have tended to be reliable votes for Biden's judicial nominees.

"I take my Constitutional responsibility to advise and consent on a nominee to the Supreme Court very seriously. I look forward to meeting with and evaluating the qualifications of President Biden’s nominee to fill this Supreme Court vacancy," Manchin said in a statement.

Sen. Patty Murray of Washington, the No. 3 Democrat in the chamber, said: "I trust President Biden to move forward an exceptional nominee who will uphold all Americans’ rights and liberties — including protecting voting rights and reproductive rights. I am ready to move as quickly as possible to consider and confirm a highly qualified nominee who will break barriers and make history as the first Black woman on the Supreme Court of the United States."

Some Republicans who have supported Democratic-picked justices in the past could also be up for grabs, such as Sen. Susan Collins, R-Maine.

"Justice Breyer has had a distinguished career, including his many years on the Supreme Court. I am grateful for his integrity, devotion to the Judiciary, and exceptional commitment to public service," Collins said in a statement Wednesday.

Sen. Lindsey Graham, R-S.C., who voted for Obama picks Sonia Sotomayor and Elena Kagan, said regarding Breyer's successor: "If all Democrats hang together — which I expect they will — they have the power to replace Justice Breyer in 2022 without one Republican vote in support."

The debate will come at a time of heightened tensions regarding the Supreme Court, which is poised to rule on high-profile cases this year involving the future of legal abortion, gun rights and affirmative action.

Democrats remain furious at Senate Republicans for refusing to allow a vote on President Barack Obama's nominee for a vacancy in 2016, citing the upcoming election. After Justice Ruth Bader Ginsburg died, they moved to quickly confirm Barrett the week before the 2020 presidential election.

Confirming a liberal justice to replace the 83-year-old Breyer, who was nominated in 1994 by President Bill Clinton, would not disrupt the court's 6-3 conservative edge. But it would likely keep the seat in liberal hands for years to come.

White House press secretary Jen Psaki tweeted Wednesday: "It has always been the decision of any Supreme Court Justice if and when they decide to retire, and how they want to announce it, and that remains the case today. We have no additional details or information to share from @WhiteHouse."

Claire McCaskill, a former Democratic senator, said part of the reason the party needs to move quickly is because of their elderly members in the 50-50 chamber.

"I hate to even say it out loud," she said on MSNBC. "There is an issue that we have members that are older. And so you have one health problem, you have one person who is not physically able because of health to be there, and the whole thing goes away."