Breyer plans to retire. That doesn’t mean Biden will get a seat on the Supreme Court

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By Philip Elliott Washington Correspondent, TIME How Republicans Can Block Stephen Breyer’s Replacement Within moments of widespread media reports that Supreme Court Justice Stephen Breyer will retire when the current term ends this summer, the Washington parlor game of making a short list of judges President Joe Biden might consider to replace him began. After all, Biden had pledged during the campaign that he would nominate a Black woman to the nine-Justice panel in an historic first. There’s one major problem facing Biden’s prospects, though: he might not be able to win confirmation for the expected pick. So much of influence in Washington isn’t in the press conferences or performative turns on cable news. The real power comes from mastering the process by which it is transferred, accumulated and defended. And, when it comes to managing a generational shift of power in America’s judicial system, no one has proven more adept than Senate Minority Leader Mitch McConnell. The Senate is split 50-50, with Vice President Kamala Harris breaking the tie. So far, so good, given past Senators have changed the rules for judicial nominees to get across the finish line with just 51 votes. The so-called nuclear option is meant as a last resort, but with the exception of Chief Justice John Roberts, none of the current conservative Justices cleared a 60-vote benchmark. But the nuclear option can go into motion only if the Judiciary Committee reports the nomination to the floor, a procedural move that says whether a majority on the committee recommends the full Senate consider the pick. Well, in a little-noticed backroom deal that took more than a month to hammer out, McConnell and Senate Majority Leader Chuck Schumer agreed to a power-sharing plan in February that splits committee membership, staffs and budgets in half. (A full nonpartisan analysis from the Congressional Research Service regarding the current process for nominees is here.) Why does this matter? If all 11 Republican members of the Judiciary Committee oppose Biden’s pick and all 11 Democrats back her, the nomination goes inert. (A pretty safe bet in a committee where at least half of the Republican members have White House ambitions of their own.) The nomination doesn’t die, but it does get parked until a lawmaker—historically, the Leader of the party—brings it to the floor for four hours of debate. A majority of the Senate—51 votes, typically—can then put debate about the issue on the calendar for the next day. But that’s the last easy part. When the potential pick comes to the floor again, it’s not as a nomination. At that point, it’s a motion to discharge, a cloture motion that requires 60 votes. In other words, 10 Republicans would have to resurrect the nomination of someone already blocked in the Judiciary Committee. Given this is an election year and Republicans have historically shown they’re not willing to give Democrats any wins on the Supreme Court in such a politically charged environment, there’s a good chance that Biden’s nominee spends her summer waiting for invites that never come from GOP lawmakers asking her in for typically cordial and informal coffees. So, yes, Biden may get to nominate a pick for the Supreme Court. But there’s no guarantee that the full Senate will take it up. After all, McConnell successfully rejected Merrick Garland’s nomination in 2016 and waited for Donald Trump to win the White House to install a replacement for Antonin Scalia. McConnell narrowly carved out selected history and dug his heels in that he wouldn’t bring Garland up for a vote. There was simply nothing Democrats could do about it. And given the rules of the Senate as they stand, a resolute Republican Party can pull a sequel to the Garland nomination. Sure, the Democrats could try to change the power-sharing agreement, but as the debate on voting rights showed us in recent weeks, one hold-out voice among Democrats in favor of the filibuster can tank the plan with little consequence. Which means all of the odds-making about who might get the call from White House Counsel in the coming days, who might get tapped to sherpa the nomination through the Senate or even what this means for the next term are all likely for naught. Republicans, should they want to, can sink this nominee. And if history is predictive, that’s exactly what they’ll do.   Share this newsletter

Here's what else we're watching in Washington How the Anti-Vax Movement Is Taking Over the Right The fringe of polite society once drew eye rolls for its antithetical approach to science and medicine. But as TIME’s Vera Bergengruen reports, that viewpoint has rallied the conservative movement in a cry against mandates and government overreach that taps into the anger, exhaustion, grief and frustration as the COVID-19 pandemic enters its third year. Read More » Washington Responds to Moscow's Demands The Kremlin doesn’t appreciate them, as expected. The Washington Post reports on last-minute efforts to build pressure on Vladimir Putin to stand down and pull some 100,000 troops off its border with Ukraine. Read More » 'Fortress Russia' Describes Moscow's Economic Stance In the years after Russia annexed Crimea from Ukraine in 2014, Russian leaders sought to insulate themselves and the country that made them rich from future sanctions. But as The Wall Street Journal reports, the moves highlighted Russia’s perceived self-weaknesses—and offered a guide for how the West might move in a sequel suite of sanctions. Read More » So… War? That’s basically the question Politico posed to 13 Kremlinologists. And their answers are as varied as they are plausible. Read More » One-on-One With The Atlanta Prosecutor Considering Charges Against Trump A special-purpose grand jury is coming together in Fulton County, Ga., to consider whether the 45th President may have committed crimes in trying to pressure local officials to swing the 2020 results. TIME’s Janell Ross speaks with Fulton County District Attorney Fani Willis about the case and what comes next. Read More »

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