There is no such thing as a slam-dunk Supreme Court confirmation in a 50-50 Senate. Ketanji Brown Jackson comes pretty close.
With the nomination of Jackson to succeed Stephen Breyer on the Supreme Court, Chuck Schumer is getting the unity opportunity he needs to jump-start Democrats’ agenda. The Senate confirmed her just last year for a D.C. Circuit seat, and there is little consternation in the Democratic Caucus that she will fall short in her bid to join the high court.
The Senate majority leader’s two latest attempts at getting all 50 Democrats on the same page on major priorities proved fruitless and frustrating, as Democrats’ razor-thin majority fell short on enacting elections reform and installing new social and climate programs. But in Jackson, the Democratic Party has far better odds of coming together — allowing them to treat potential Republican support as a bonus, not an imperative.
Given the party’s success over the past year at confirming lower-level judges and the dearth of defections, Schumer said in a statement to POLITICO that he believes “that unity will continue as we move forward with Judge Jackson’s Supreme Court nomination.”
“We’ve had tremendous unity and success on judges. Senate Democrats worked with President Biden to put more judges on the federal bench than any president in his first year since JFK,” Schumer said. He touted the diversity of those judges, including that many are women and people of color, plus their “professional diversity and exceptional qualifications.”
Confirming Jackson is a vital assignment for both Schumer, a former Judiciary Committee stalwart, and his top deputy, Sen. Dick Durbin (D-Ill.), who serves both as party whip and the Judiciary Committee chair. Biden spoke to Schumer on Friday morning and will closely coordinate with Durbin as the committee process moves forward.
Those top two Senate Democrats will play prime roles in making sure everyone in the party is on board — pushing for Democrats to unilaterally confirm Jackson. And they start off with a strong hand.
“People are familiar with her record and experience and they supported her for D.C. Court of Appeals,” Sen. Chris Van Hollen (D-Md.) told reporters on Friday afternoon. “I have great faith the Senate will confirm her nomination … I can’t speak to all of my colleagues, but given the previous vote on Judge Jackson I’m very optimistic she’ll have the votes to get through.”
Jackson has broad support from the party’s liberal wing, including a new $1 million ad buy from progressive group Demand Justice. Sen. Bernie Sanders (I-Vt.), who explained recently he wanted a nominee who “understands that we are moving towards an oligarchy in this country,” said on Friday he “strongly” supports Jackson’s nomination.
And though Sen. Joe Manchin (D-W.Va.) suggested he might have preferred the “mainstream approach” of Judge J. Michelle Childs, he also said the candidates on Biden’s short-list were “all good.” Democrats don’t currently see him or Sen. Kyrsten Sinema (D-Ariz.) as potential obstacles to Jackson’s confirmation. Neither moderate senator has opposed any of Biden’s judicial nominees.
Those dynamics are important for Schumer and Senate Democrats, as they try to dust themselves off from Manchin’s opposition to Biden’s $1.7 trillion social and climate-spending bill, plus Sinema’s and Manchin’s votes against a filibuster change to pass a federal elections bill. Confirming the first Black woman to the Supreme Court over most Republicans’ opposition would amount to a major win for a majority leader who could use a shot in the arm, especially if he still hopes to revive parts of his party’s social spending bill.
That’s not to say it will be easy; the next month and a half will be grueling. Schumer and Durbin have made no secret of their plans to confirm Jackson before the Easter break, which starts in early April. The Senate is scheduled to be in session for six straight weeks starting on Monday, a rare elongated stretch that allows Democrats to begin and end the confirmation process for Jackson in the same work period, provided they can avoid any hiccups.
Durbin said his panel “will begin immediately to move forward on her nomination,” and Schumer said Friday afternoon that after a “prompt hearing” and Judiciary Committee vote he will “ask the Senate to move immediately to confirm her.” Democrats have been discussing a confirmation timeline similar to Justice Amy Coney Barrett, who was nominated and confirmed in about a month.
Republicans will have some sway over the timeline, although they ultimately cannot stop the nomination unless a Democrat defects or has another health issue. Sen. Ben Ray Luján (D-N.M.) is expected to return to the Senate after suffering a stroke earlier this year, in time to help confirm Jackson. Schumer said Luján is “recovering well” and his stroke diagnosis “will not stand in the way of us moving quickly.”
After Jackson’s hearings, the GOP can try to delay a committee vote, under Judiciary Committee practices. And if every Republican voted against her in committee — and every Democrat voted to advance her — the tie would force Schumer to hold extra votes to bring her nomination to the Senate floor.
Sen. Lindsey Graham (R-S.C.), a Judiciary Committee member, had supported Jackson’s confirmation to the D.C. Circuit but vocally backed Childs for the Supreme Court spot. He said Jackson’s selection means “the radical left has won President Biden over yet again.” Graham could make Schumer’s and Durbin’s lives easier if he supports her, but Democrats are not counting on his support.
Nonetheless, Graham has discouraged the tactic of denying a committee quorum for Jackson, which Republicans have used on the Senate Banking Committee to delay Federal Reserve nominees. So has Sen. Chuck Grassley (R-Iowa), the top Republican on the Senate Judiciary Committee.
“I intend to show up and do the job that Iowans pay me to do,” Grassley said Friday.
That means Schumer and Durbin can hope for a relatively drama-free confirmation — as long as they can round up the 50 votes that eluded them on the party’s last two top priorities.
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