Justice Stephen Breyer’s announcement wasn’t even official, but the battle was already engaged with some claiming a secret plot was afoot to install either Mitt Romney or Hillary Clinton as Vice President. Others took issue with the race of the potential nominee and Vice President Harris. Still others took aim at the rule of law itself.
Outside of a presidential election, few things in American politics generate the passion, interest, and drama of a Supreme Court confirmation battle. Rather than question how or why we’ve reached the point where nine black robed individuals have so much power over American life in the first place, we gird ourselves in our partisan corners and revel in the ecstasy of victory and the agony of defeat. The details behind the battles quickly become legends: Robert Bork’s confirmation fight in 1987 added a new word to the lexicon, “Borked.” Clarence Thomas brought sexual harassment charges to the forefront of politics for perhaps the first time and created a national platform for then Senator Joe Biden. Brett Kavanaugh witnessed a literal occupation of the grounds around the Capitol complete with claims he operated a gang rape ring in high school and reporters pouring through this early 1980’s yearbook for clues about what the phrase “Devil’s Triangle” truly meant at the time. Sometimes, there doesn’t even need to be an actual battle: Progressives continue to insist that then Senate Majority Leader Mitch McConnell stole a seat from then President Barack Obama when he refused to hold hearings for Merrick Garland during an election year.
Therefore, it was no surprise that the (leaked) announcement of Justice Stephen Breyer’s retirement immediately prompted a broad range of reactions including everything from the absurd to the crude to the insane. The announcement wasn’t even official yet when disgraced “conservative” Bill Kristol took to Twitter, spinning a wild fantasy and he wasn’t along. “Straightforward from here,” he intoned like some kind of medieval prophet. “June 30: Court overturns Roe. July 1: Breyer resigns, says Court ‘needs aggressive progressive justices.’ July 4. Biden picks Harris for Court. Harris resigns as VP. July 5. Biden picks Romney as VP, says national unity needed for the world crisis.” This same, completely fantastical thinking also fueled speculation on Newsmax and Fox News. In that case, the real plan was to install Hillary Clinton as Vice President after Ms. Harris is on the court. Built into this assumption is the idea that President Biden will step down at some point in the near future and Ms. Clinton will finally realize her dream of being President, installed if not elected. Even President Trump’s former Press Secretary, Kayleigh McEnany claimed, “I think it’s a theory that could be credible.”
Of course, the obstacles to enact such a scheme in the real world are almost too numerous to list and so impossible to overcome. For starters, the Senate is currently split 50-50 and the Democrats will need to secure a majority to confirm President Biden’s nominee. Kamala Harris as President of the Senate could potentially provide that majority with a tie breaking vote. Indeed, assuming the Republicans are united in their opposition, a reasonable proposition in an election year, her vote would be essential to a successful confirmation. Astute readers will note I used the phrase“potentially provide that majority.” This is because we are in uncharted Constitutional waters. Some legal scholars have long maintained that the President of the Senate’s tie breaking power doesn’t extend to matters of advice and consent for presidential appointments. For example, Harvard Law Professor Lawrence Tribe, a progressive expert in these matters, declared that it does not as recently as the fall of 2020, during Justice Amy Coney Barrett’s confirmation.
In support of his position, he quoted Founder Alexander Hamilton in an op-ed for The Boston Globe. “While the vice president has the power to cast a tiebreaking vote to pass a bill, the Constitution does not give him the power to break ties when it comes to the Senate’s ‘Advice and Consent’ role in approving presidential appointments to the Supreme Court. You don’t have to take my word for it. Alexander Hamilton said the same thing way back in 1788, in Federalist No. 69: ‘In the national government, if the Senate should be divided, no appointment could be made.’” Of course, Mr. Tribe is now hedging his bets given Democrats might need the vote, saying last week, “I wrote that piece around 15 months ago and have not thought about the issue since. I doubt that I would reach a new conclusion upon re-examining the matter. Even though, given the current political circumstances, I obviously wish the situation were otherwise.”
Whichever view ultimately prevails, it’s a certainty that Democrats including President Biden will insist Vice President Harris has the power to break a tie, as they certainly aren’t going to give up a potentially crucial vote in the high stakes matter of a Supreme Court appointment. Nor is counting the votes the only problem with picking Vice President Kamala Harris. The new Vice President, Ms. Clinton, Mr. Romney, or whomever, would also need to be confirmed, this time by both houses of Congress under the 25th Amendment. The country would operate without a Vice President in the meantime, making Speaker of the House Nancy Pelosi second in line for the presidency, literally a heartbeat away. President Biden will turn 80 later this year. Speaker Pelosi will turn 82 in March. A Vice Presidential vacancy would place the entire country at grave risk, plunging us into yet another potential crisis for an undetermined period, and one which President Biden isn’t even assured to get his preferred pick. The Senate would be 50-50 with no tie breaking vote, giving Republicans the power to block any choice, even forgetting that the House of Representatives is as close as its been in decades. As far as I can tell, there is no upside politically for Biden to pursue this course: It’s all risk with potentially no reward.
At the same time, there is a certain cold, calculating logic underlying these fantasies. Vice President Harris is the least popular national figure in the country with approval ratings regularly below Biden’s own less than stellar numbers. In addition, President Biden has long insisted he will nominate a black woman, meaning there is the potential to eliminate a political liability as well as fulfill his promise to progressives in, as Shakespeare might say, one fell swoop. This gives fantasizing about these schemes a certain appeal, however ridiculous. Much less appealing is the reaction of some on the right, who feel compelled to criticize the idea of choosing only a black woman in language that can best be described as crude. Tomi Lahren leads the charge in this regard, using the President’s position to attack Kamala Harris. She said, “We know that what Joe Biden does best is placate to the radical element and the radical progressive base of his party that he believes is the majority. I believe that they are actually the minority…We saw how well that worked out with Kamala Harris but here’s to hoping that he has a better choice in mind for this position.”
Ms. Lahren is referring to then-candidate Biden’s similar promise during the primary campaign to choose a black woman as Vice President, ultimately settling on Kamala Harris, but her choice of words and decision to mock Ms. Harris does little to advance the conservative vision of a color blind society. Instead, it opens her up to accusations of racism, and sure enough S.E. Cupp, once considered a conservative commentator, piled on, tweeting, “It’s ALL just the quiet part now” in reaction to the headline from Mediate, “Tomi Lahren Ridicules Idea of Black Woman Filling Vacant SCOTUS Seat: ‘We Saw How Well That Worked Out With Kamala.’” It’s also historically illiterate as none other than conservative hero Ronald Reagan also stated his desire to select a woman to the court before he made the actual appointment. In that case, it was Sandra Day O’Connor, who went on to a long career as a respected justice. The problem isn’t the people picked. It’s the thought process behind the picking.
Nor should this be seen as a desire to avoid confronting progressives about their fetish for classifying everyone first and foremost by their race and gender. This is a poisonous philosophy, spreading through every aspect of American life from our schools to our military. To quote current Chief Justice John Roberts, dividing Americans up by race is a “sordid business.” It should be confronted at every turn, but Ms. Lahren and others would better advance their argument if they were to focus on how this thinking marginalizes people from the start. Rightly or wrongly, Vice President Harris is seen by broad swaths of the country as an affirmative action pick, a purely political move to placate the progressive base, especially given her struggles in the office. Why would President Biden choose to “brand” any nomination this way before it’s even made? Whoever is picked, whatever her qualifications, there is always going to be the sense that she was nominated because of her race and gender alone.
This, however, is entirely Biden’s own doing and, therefore, he should be the one blamed for it, not the nominee themselves, lest anyone thinks there is a lawyer in the country of any race, creed, or color who would give up a slot on the Supreme Court whatever their qualifications or lack thereof. The underlying problem is not with the person ultimately picked, but with the worldview that prioritizes representation above all else. While fair-minded Americans should want to see a highly qualified black woman achieve success on the Supreme Court, announcing that you are only considering a black woman in advance undercuts the eventual nominee, classifying her independent of her legal mind or other qualifications. This is demeaning and dehumanizing, implying that a black woman would not be nominated if the pool of nominees included all the legal minds in the country. The American people also seem amenable to this point of view with 76% of respondents in a recent poll disagreeing with President Biden’s position that we should only consider a black woman for the court. This is the race-based ideology we should be confronting directly, rather than taking cheap shots at Ms. Harris, however easy that may be to do at the moment.
Alas, playing politics with crude language might be the least of our concerns when some are recommending we should play politics with the law itself, an insane proposition for anyone remotely interested in preserving a Constitutional Republic. Democrat Senator Mazie Hirono told MSNBC last week that she doesn’t want a potential new justice to believe in such niceties as fidelity to the law and precedent. “I am expecting a fight, but there you have it. And I’m looking for someone who’s going to be, not only highly qualified, as all of the people that you already talked about are, but who really brings to the judiciary the kind of diversity that I’d like, that someone who will consider the impact, the effects of whatever decision-making is on people in our country so that they are not making decisions just based on, which I would like them to base it on law, which would be nice and precedent.” Talk about the quiet part out loud: A sitting US Senator who has sworn to uphold the Constitution claims the ideal justice would not make decisions based solely on the law. Unfortunately, this seems to be the prevailing progressive political philosophy in general.
Jack Schaefer, writing for Politico, makes this point in a different manner, claiming we should “be real” because the “The Supreme Court is Political and Always Has Been.” He quotes Judge Paul Leahy, who once told his clerk, Floyd Abrams, “A judge is a lawyer who is a politician who has a friend.” From there, he concludes “Liberal presidents pick liberal nominees and conservative presidents pick conservative ones. It’s built into the system.” There is of course a lot of truth to this as Mr. Shaefer also cites Chief Justice John Roberts, who said at his confirmation hearing that a justice’s job is “to call balls and strikes, and not to pitch or bat.” His colleague, Justice Sonia Sotomayor later countered, “different umpires have different strike zones.” This is, of course, equally true but there is a distinction with a huge difference to be found if you look just a little more closely. The courts are a branch of government. Their members are appointed by another branch and ultimately confirmed by a third. This is a political process, and humans are innately political creatures.
At the same time, we shouldn’t allow “political” to be transformed into a code word for doing whatever a person pleases whenever they please, making up stuff as they go along whatever the law may actually say. Judges and Supreme Court Justices have a defined role in our system of government, the same as the President and members of Congress. Their role is to interpret the law, not make or enforce it. Therefore, we should no more tolerate a justice legislating from the bench than we would a Congressman trying to run the Justice Department, or a President crafting and implementing legislation on their own. We can acknowledge and accept that interpretations will differ based on partisan leanings, but that doesn’t mean we should allow justices to stop interpreting entirely. The rule of law itself and democratic norms require it. Ultimately, one other thing is clear: There will be a fight over this nominee, as there always is, as the media and politicians demand to extend their fifteen minutes of fame, but those of us not participating in this game should rest rather easy for a change. Justice Breyer was a progressive member of the bench, likely to be replaced by another progressive. The balance of power on the court is not at stake, and nothing will change once the new Justice is seated, whether him or her, white or black. The battle over the nomination will be all smoke and no fire. Rational people would do well to ignore it as best they can.
Confessions of a Conservative Atheist 