The politics of replacing Breyer

The Washington Post reports that Democratic leaders are excited about the prospect of replacing Justice Breyer, and not just because of the opportunity to put a youngish left-liberal on the Supreme Court. According to the Post, Democrats see a political opportunity.

They expect, as I do, that Biden will nominate a black female and that she will face considerable opposition from Republican Senators. Dem leaders apparently believe that in this scenario, their base will be energized for the midterm elections and the electorate as a whole will be put off by GOP opposition to a qualified black woman.

The first part is true. A confirmation fight would energize Democrats. But it would also energize Republicans.

As to the view that a confirmation fight would benefit Democrats on balance, it strikes me as wishful thinking. First, the Democratic leadership reportedly plans to push for quick confirmation of whomever Biden nominates. If this happens, any battle over the nominee will be a distant memory by November, completely overshadowed by the Supreme Court’s decision on abortion and many events that have nothing to do with the Court.

For this reason, among others, I doubt that the process of replacing Breyer will have any discernible impact on the midterms. If it does, however, my view is that Republicans are more likely to benefit than Democrats because Biden has set aside a spot on the Supreme Court for a “diversity” hire.

Democratic leaders remain out of touch with the electorate on this sort of thing. Americans have no objection to a black female ascending to the Supreme Court. Other things being equal, a great many would applaud this development.

But Americans don’t like race/gender-based hiring decisions, and they certainly don’t like to see jobs set aside for individuals from a particular group. This is clear from polls and, indeed, elections — even in states as left-liberal as California.

A set aside excludes people from even being considered for a position because (in this case) they are (1) non-black and (2) male. This is the most blatant form of race/gender discrimination. Even those awful Supreme Court decisions that uphold race-discrimination in college admissions denounce the practice of openly setting aside slots for members of particular racial groups.

How, then, should Senate Republicans proceed? Not, in my view, by expressly denouncing the nominee as a diversity hire. There’s no need for that. Biden, Senate Dems, and their media cheerleaders will make it quite clear that this is what has happened.

Instead, Republicans should consider questioning the nominee’s qualifications. Given the weak bench of black female candidates and the desire to appoint someone young, those credentials will probably be relatively thin. If so, this will reinforce the idea that Biden has allowed race and gender to trump qualifications for one of the dozen or so most important jobs in America.

Senate Republicans should also highlight any other problems with the nominee that comes to light. It might be something she wrote as a young lawyer or a student. It might be a social media post. It might be a problematic opinion on a hot-button issue like crime. But Republicans should abstain from backing last-minute, weakly substantiated claims of personal misconduct.

It’s highly probable that Biden’s nominee will be confirmed, but you never know. The confirmation process might reveal facts that all Republicans and at least one Democrat view as disqualifying.

But even if the nominee has sterling qualifications and no special problems, left-liberalism will be reason enough to oppose her under today’s unwritten rules. The Republican base will expect GOP Senators to follow those rules.

As final decision time approaches, we should know whether the nominee has the votes to be confirmed. Senators running for reelection will also have a strong sense of how their vote will go down with voters in their state. It will be up to them to weigh these considerations as they decide how to vote.

Mitch McConnell will also weigh the impact of a confirmation fight on Republican prospects for regaining a Senate majority. He is far more competent than any outsider to do this calculus.

For what it’s worth, though, my calculation is that (assuming Biden nominates a left-liberal) Republicans should fight this nomination, especially if, as seems almost certain, it’s a “diversity” selection.

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