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Biden’s Supreme Court risk – WSJ

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Biden’s Supreme Court risk – WSJ

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Given the White House’s eagerness to seize Judge Stephen Breyer’s retirement, the administration is clearly banking on a confirmation fight giving the Democratic Party a midterm boost. This calculation may turn out to be as wrong as any so far under the presidency of Joe Biden. Especially if the president dances to progressive demands again.

Judges often brief the White House on retirement plans in the hope that the news will remain confidential until later in the court’s term. The Biden administration was so eager to change the headlines of inflation, Covid and the president’s crummy ratings, it did not extend that courtesy to Judge Breyer. Wednesday’s news forced Judge Breyer to write a formal retirement letter the next day.

Democrats are reveling in the distraction while assuring the media that the upcoming confirmation fight will galvanize its base for midterms, especially given Mr. Biden’s vow to appoint the court’s first black woman. The party is also actively encouraging its malleable press to make this story – the story of a Democratic presidential candidate facing a Democratic majority in the Senate – a story all about Republicans. The narrative is that the GOP was foiled by a shrewd White House, divided over the risks of staging an all-out assault on a minority candidate and bitter over its inability to stop a vote.

It’s a way of looking at things – a way uninformed by facts, history or political reality. There is no doubt that Biden’s base is hungry for political victory after the demoralizing defeats of his multi-trillion-dollar spending bill and control of the vote. And no doubt, Mr. Biden will be recognized by progressives for delivering on his campaign promise and leaving his “historic” mark on the pitch.

Yet this nomination lacks the drama that has enlivened other Supreme Court fights in recent years. Mr. Biden’s choice will make no difference to the ideological makeup of the court. He replaces a Liberal with a Liberal, while six conservative judges rule. The candidate is also unlikely to be a surprise or produce surprises. Mr. Biden’s short list is necessarily very short, and one of the candidates (Judge Ketanji Brown Jackson of the United States Circuit Court of Appeals for the District of Columbia) only resisted confirming the Senate than last year.

Mr Biden is promising a name before the end of February, and Senate Majority Leader Chuck Schumer aims to wrap up confirmation in about a month. Barring any delays or flashpoints, then, Democrats could be in April where they currently are politically – with a appointee in the rearview mirror and voters once again focused on inflation, Covid and the rest. . It’s hard to see how a relatively straightforward court case in the spring will push the Liberal base to the polls in November. Especially since, historically, the Supreme Court is an issue that motivates more Republican than Democratic participation.

The immediate risk is for the Democrats, namely that the president imposes on them another responsibility in the medium term. Mr. Biden is once again faced with a choice. He can choose a qualified liberal in the mold of Justice Breyer or Justice Elena Kagan and take credit for appointing a substantial, thoughtful jurist to the bench. Or he can pander to progressive demands to infuse the court with a new radicalism and deliver an amped-up version of Judge Sonia Sotomayor, all angry, bluster and fiery opinions.

If it’s the latter, watch Republicans hang this nominee around the necks of vulnerable Senate Democrats in the next election. Contrary to press reports, the Conservatives do not feel much angst over this appointment. Republicans expected Judge Breyer to retire and knew Democrats would have the votes to confirm a replacement. Not only will the choice not change the ideological makeup of the court; some Republicans believe a new, more sweeping justice could help their cause by making it harder for Justice Kagan to forge compromises with the two conservative justices needed for a majority.

Expect the vast majority of Republicans to focus more on Mr. Biden and the Democrats (and what that pick says about their governance) than on the candidate herself. They’re betting even a radical Biden nominee would get unanimous Democratic support, and they’re preparing to make sure Mark Kelly of Arizona and Maggie Hassan of New Hampshire own that vote. Combined with Senate Democrats’ new promise to kill the legislative filibuster, an inflammatory Supreme Court pick could further alienate independents even if it electrifies Republicans.

A Supreme Court pick is always a political risk for a president heading for an election — something the press was quick to point out when Donald Trump pondered who to pick to fill Ruth Bader Ginsburg’s seat at the helm. fall 2020. Mr. Trump has largely neutralized this risk by choosing the skilled and respected Amy Coney Barrett.

But Mr. Biden is already used to caving in to demands from the left, and all the pressure now will come from the Demand Justice crowd to go radical. The White House had an opening here. Will he use it wisely or will he double down?

Write to kim@wsj.com.

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Biden’s Supreme Court risk – WSJ

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