What Will Biden’s Supreme Court Nominee Mean For Democrats — And The Midterms?

Welcome to FiveThirtyEight’s politics chat. The transcript below has been lightly edited.

sarah (Sarah Frostenson, politics editor): President Biden has had a couple of rough months, but on Wednesday, he was thrown a lifeline with the news that Justice Stephen Breyer plans to retire from the Supreme Court at the end of its current term.

Getting to nominate a Supreme Court justice is a big deal for Democrats, too, as liberal justices haven’t always left the bench at an opportune time (the late Ruth Bader Ginsburg is just the most recent example). It’ll be a history-making appointment, too, because Biden is expected to honor his campaign promise of appointing a Black woman to the court.

So let’s discuss the effects we expect Democrats’ Supreme Court nomination to have:

1. First, can Democrats actually get their nominee through? The nomination process for Supreme Court justices has become increasingly rancorous. What are the stakes in this process?
2. Second, while the timeline for when Breyer’s replacement will be appointed isn’t clear yet, what effects do we think this will have on the midterm elections — especially given that it’s likely to coincide with what was already going to be a very high-profile term for the court?
3. Finally, let’s talk about the overall importance of whomever Biden nominates to the court. Liberal justices will still be in the minority, but whomever Biden nominates will nevertheless play an important role in shaping the court.

Let’s start with that first question. Democrats can get their Supreme Court nominee through … right?

ameliatd (Amelia Thomson-DeVeaux, senior writer): If the Democrats can’t get this nominee through, they should just pack up and go home.

sarah: 🔥

ameliatd: I’m serious! They’ve got the votes, they’ve got time, they’ve been holding together on other judicial nominees. If they can’t make this happen, then that’s a sign of much bigger dysfunction than what we’re seeing currently on legislation. 

Who knows when they’ll be able to get another Democratic nominee onto the court?

alex (Alex Samuels, politics reporter): Well, the good news for Democrats is that Republicans can’t block a Supreme Court nomination in the judiciary committee or on the floor as long as all 50 Senate Democrats — I’m looking at you, Joe Manchin and Kyrsten Sinema! — hold their ground and back Biden’s nominee. Based on Nathaniel’s recent story, that seems likely, but you really never know.

nrakich (Nathaniel Rakich, senior elections analyst): Yeah, despite Manchin’s and Sinema’s high-profile defections from the party on major votes lately, I found — somewhat surprisingly — that no Senate Democrat has ever voted against any of Biden’s federal-court nominees so far. 

The caucus has been remarkably cohesive and unified on the issue of judges:

alex: Manchin also said last week that he’d support a justice who is more liberal than he is — which is a good sign that Democrats will be able to get this through. And it’s also not completely out of the question that a handful of Senate Republicans back Biden’s nominee! 

I was pretty shocked at House Majority Whip James Clyburn’s claim that the two Republican senators from South Carolina — Lindsey Graham and Tim Scott — would potentially back Democrats if Biden tapped J. Michelle Childs for the role.

ameliatd: You found that a couple Republicans might cross the aisle, right, Nathaniel? At least based on how judicial votes have been going so far?

nrakich: Right, Amelia. Sen. Susan Collins has voted for Biden’s judicial nominees 86 percent of the time, Sen. Lisa Murkowski has voted for them 85 percent of the time and Graham — who is kind of old-fashioned in that he still defers to the president on his nominees, the way senators used to do 30 years ago — has voted for them 84 percent of the time.

sarah: But do we think that analysis of federal judicial nominees will be applicable to the Supreme Court? Asking as maybe the biggest thing working against Democrats is that the nomination process for a Supreme Court justice has become increasingly rancorous, meaning they can’t really count on any GOP support, right?

ameliatd: Appeals court nominations are also getting more rancorous, though, Sarah. Judicial nominations in general are just getting more acrimonious — but this is so high-stakes that it seems unlikely to me that Democrats would fall apart here.

nrakich: I think that’s right, Sarah — for instance, I doubt Murkowski, who is up for reelection this year, will want to anger the Republican base by casting such a high-profile vote in Biden’s favor.

But I also think there’s less incentive for Republicans to block this nominee than usual. Control of the court isn’t at stake, since this would be going from a liberal judge to a liberal judge, and conservatives’ majority is pretty secure now at 6-3. 

geoffrey.skelley (Geoffrey Skelley, elections analyst): Yeah, this might be the last time Democrats have control of the Senate when a Supreme Court vacancy occurs for some time, so this is a pretty pivotal appointment for them to not screw up. And as Nathaniel’s analysis found, there’s probably a good chance they remain united. 

Still, if a Democrat or two breaks from the party line, counting on Republican support could be dicey. If we look back at recent confirmation votes, they’ve become increasingly close because fewer and fewer senators cross the aisle to back the other party’s nominee.

ameliatd: If Democrats can’t get this nomination through and they lose the Senate in November, Breyer doesn’t have to leave. He conditioned his retirement on his successor being nominated and confirmed. But he’s retiring now for a reason — he’s in his 80s — and who knows when the Democrats will control the White House and the Senate again. It’s possible that if Breyer can’t retire now, a Republican president will end up replacing him.

I’ll never say never — politics now is too weird for me to bet the farm on anything. But this really is Democrats’ seat to lose, and they have to know that.

sarah: OK, we’ve talked about how important every vote is in the nomination process, but what are some of the other stakes of this process, especially considering Biden has said he plans to uphold his promise to appoint a Black woman to the Supreme Court?

alex: There’s probably a strategic reason behind the White House wasting no time confirming that Biden would follow through on his campaign promise to nominate a Black woman. I wouldn’t be surprised if they view this as a motivator for Black voters — who are souring on Biden’s presidency.

geoffrey.skelley: Black women are the most reliable voting bloc for Democrats, and such an appointment would make history. So politically, on top of Biden’s previous campaign promise, this makes a lot of sense. 

There have been a lot of ridiculous takes on the right about the nature of this appointment being promised to a Black woman, but that ignores the fact that presidents have historically considered identity when making appointments. President Ronald Reagan promised to appoint a woman, for instance, and chose Sandra Day O’Connor; George H.W. Bush appointed Clarence Thomas to succeed another Black man, Thurgood Marshall.

alex: To your point, Geoff, the racial breakdown of Supreme Court members over time is pretty striking: Of the 115 justices who have served, all but seven (Thomas, Marshall, Sonia Sotomayor, O’Connor, Ginsburg, Elena Kagan, Amy Coney Barrett) have been white men.

ameliatd: A handful of Black women are being floated as possible replacements for Breyer, and three of them — Judge Ketanji Brown Jackson, who’s currently an appeals court judge on the D.C. Circuit; Justice Leondra Kruger, who’s a justice on the California Supreme Court; and Judge J. Michelle Childs, who’s a district court judge in South Carolina — appear to be the top contenders.

But if I had to pick, I would bet on Jackson being the nominee. She has all the right credentials — two degrees from Harvard, extensive judicial experience, even a clerkship with Breyer himself! And Biden appeared to be teeing her up for this spot by nominating her to the D.C. Circuit last year — it’s often a feeder to the Supreme Court. (Justices Thomas, John Roberts and Brett Kavanaugh all served on the D.C. Circuit before the Supreme Court.)

sarah: Geoffrey raises an interesting point: How much is this appointment meant to play to Democrats’ base? 

As Alex pointed out, Biden and Democrats have taken a hit recently with Black voters. Thinking ahead to the 2022 midterms — the timing of when the nomination vote will actually happen is still unclear, but assuming it will be relatively close to the midterms — how much does a party’s base care about Supreme Court nominations?

I also think one thing that’s particularly complicated about this nomination process is that this term has already had a number of high-profile, contentious cases. Will those cases weigh more in voters’ minds?

alex: Some polling taken over the last few years suggests that the Supreme Court has never been a top priority for either Republican or Democratic voters. In 2020, for instance, shortly after former President Donald Trump released a short list of potential Supreme Court nominees, Morning Consult/Politico found that only 48 percent of Democrats and 50 percent of Republicans said the Supreme Court was “very important” in deciding their vote that year. I realize 48 percent and 50 percent aren’t nothing, but at the time, it ranked below issues like the economy, health care, national security, taxes and COVID-19 for members of both parties.

ameliatd: Supreme Court nominations have traditionally been an issue that’s mattered more to Republicans. But there’s evidence that Democrats are tuning more into the importance of the court, too.

And if the court overturns Roe v. Wade or expands gun rights this term, that will definitely focus negative attention on the justices as both would be out of step with public opinion. Overturning Roe in particular would be highly unpopular. There aren’t many issues that could plausibly cause a backlash against the court, just because so much of what they do is technical and under-the-radar, but that’s one of the big ones.

geoffrey.skelley: I think where the Supreme Court pick matters when looking ahead to the midterms is that it’s a chance for Biden to make history and receive some positive coverage in the process. 

That could help shore up his base, which has been flagging, as Alex mentioned earlier. (Maybe it even helps Biden regain some support among independents, where he’s really lost support.) I’m not sure it’s the sort of thing that can dramatically change the trajectory of his approval rating, but it could tick up slightly afterward.

nrakich: I agree with that, Geoffrey. A successful confirmation would also be a concrete win for Biden that could change this narrative of incompetence and failure he’s been stuck in.

I don’t really think this nomination fight will affect the midterms much, though. If anything, it makes the Supreme Court less relevant for the midterms. As long as Breyer was still on the court, Democrats had an argument for saying, “You have to keep us in control of the Senate so we can appoint a liberal justice to replace Breyer!” Now, they can’t make that argument.

ameliatd: My feeling is that the bigger question here is what the court’s conservatives do. If the term ends up to be less headline-making than court watchers are expecting, I’m not sure how much people will care. After all, this isn’t a liberal replacing a conservative — most people don’t even know who Breyer is.

sarah: Yeah, that’s a good point, Amelia. But if the court is as conservative as court watchers expect, the timing could be an important factor here, too. We did find, after all, that Kavanaugh’s nomination to the Supreme Court affected the 2018 midterms, especially in Senate races. 

alex: We can’t rule out the possibility, either, that this motivates Republicans more than Democrats.

The fact that the White House made it clear early on that Biden intended to stick to his word and nominate a Black woman already has some Republicans up in arms, and I think that, especially after the “racial reckoning” of 2020, there are a lot of white voters who are angry about their perceived loss of power and status. Replacing a white man with a Black woman — even if they are similar ideologically — could stir up angst among conservatives who already believed they were losing political clout to Black voters. As Geoff mentioned earlier, there have already been a number of racist takes from GOP pundits that I’m going to refrain from linking to, but I can only imagine how bad things will get from here …

If it’s not about race (which I doubt), I’d expect the GOP to simply attack Biden’s appointee as too liberal. Missouri Sen. Josh Hawley already tweeted that Biden faces a choice of nominating either “someone who loves America and believes in the Constitution” or “a woke activist.”

ameliatd: Yeah, Alex, I think this is going to be a nasty confirmation hearing. There are already people attacking Biden for appointing a “less qualified” person — before he’s even named his nominee!

And even though we found that Biden is actually nominating more Ivy League and top law-school grads than previous presidents, this is a familiar trope for women of color in lots of professions, not just law. You have to be the best of the best to make it to the top — and people still question your credentials.

alex: Exactly. And Republicans are also already reminding voters that the court should be a factor for voters this fall. Just look at Graham’s tweet thread on this from a few days ago.

I’d expect that Republicans double down on this argument, particularly in competitive states where Democratic senators are defending their seats.

ameliatd: I guess the flip side of what you’re saying, though, Alex, is that a confirmation hearing where the first Black woman to be nominated to the Supreme Court is subjected to a bunch of racist questioning about her qualifications could make Democratic voters pretty angry, too.

geoffrey.skelley: Definitely a potential boost for the GOP, although I wonder how much more energized can Republicans get? They’re already more likely to turn out in a midterm with a Democrat in the White House, and if the 2021 gubernatorial elections were any indication, turnout will likely be very high again for a midterm this November.

ameliatd: This is a bit of a nerdy point, but I’ll be interested to see how the hearings go. Traditionally, nominees studiously avoid saying what they think about any high-profile issue or precedent that comes before the court. And that makes the hearings pretty snoozy for the most part. But in a moment when precedents like Roe v. Wade are actively threatened — does that change?

Probably not, but it’ll be more complex for the nominee to navigate.

geoffrey.skelley: Fair question, Amelia. If the nominee were to make more assertive comments on a topic like Roe, I could imagine that getting a lot of play on the news. I’m not sure whether that’s good or bad for one party or the other, though — maybe it reminds some Democratic voters of the stakes for the court, but it could also, to Alex’s point, further energize social conservatives to show up in the midterms.

sarah: On that point, let’s talk a little bit more about the overall importance of whomever Biden nominates to the court. As Amelia flagged, the court is currently in the throes of a 6-3 conservative revolution. That isn’t going to change with whomever Biden nominates — liberal justices will still be in the minority — but this justice, whoever she might be, will still play an important role in shaping the court. Let’s talk about that a little more and what the consequences of that are.

ameliatd: Breyer was very much an old-school Supreme Court justice. He staked out a place on the court’s center-left and tried to compromise with the conservatives on some big issues, like religious liberty. He basically spent the last year trying to convince Americans that the court is nonpartisan. Of course, that’s a line we’ve heard from other justices recently too. But it felt with Breyer that he was trying to operate on a court that no longer existed.

Someone like Jackson, on the other hand, is presumably well aware of the political moment. She was the judge in a case that came out of Democrats’ investigation into special counsel Robert Mueller’s report on Russian interference in the 2016 election. (Remember that thing that feels like it happened 75 years ago?) So you’d imagine her potentially staking out a position more like Sotomayor, who has been calling out the conservative justices right and left this term.

There’s evidence, too, that diversity makes a difference in cases on issues like affirmative action — at least on lower courts. And the court just so happens to have taken an affirmative action case for what will likely be next term. Do I really think that will change the outcome on this Supreme Court? Probably not. The conservative justices have been gunning for affirmative action for years. But having another nonwhite justice could affect how they handle the case.

nrakich: One thing that I always thought was interesting about the Supreme Court is that, historically, whether a justice was appointed by a Republican or Democratic president wasn’t super predictive of where they’d end up ideologically. I’m curious, Amelia: Do you think that era is over?

In other words, is there any chance for one of the conservative justices to get more liberal over their tenure, or vice versa?

ameliatd: That era is definitely over, Nathaniel. It ended along with the era of unanimous votes for Supreme Court nominees.

Some people say Roberts is getting more liberal. I am not in that camp. I think what’s happening is that he cares about institutional credibility, and as the court gets more conservative, it’s getting increasingly out of step with public opinion. That’s where his breaks with the conservatives (which are few and far between) come from.

nrakich: It does kind of feel like Roberts is standing still and it’s the other conservative justices who are moving — to the right.

ameliatd: The conservative legal movement has spent the past 40 years working to get justices on the court who won’t get more liberal. It seems like they’ve been extraordinarily successful.

sarah: Yeah, Amelia, it’s hard to see outcomes on the Supreme Court changing anytime soon. It’ll be interesting, though, to see what this means for the three liberal justices — and most likely three liberal female justices — to be in the minority for years to come.

ameliatd: What it means for the liberals, Sarah, is that they have to figure out how to make being in the minority work for them. Breyer’s approach (and also Kagan’s) was to try to stanch the bleeding — keep the court from moving to the right too quickly and compromise with conservatives to get not-terrible outcomes.

But that approach actually resulted in some pretty big concessions for the liberal justices, including last term’s religious-liberty case. And I don’t see a lot of evidence that the conservative justices — with the exception of Roberts — are interested in compromising with the liberal justices on anything at this point.

So I would suspect we’re going to see a lot more of dissents like the one we just got from Sotomayor, who said that the court’s decision to let Texas’s highly restrictive abortion law stay in effect was a “disaster.”

nrakich: It’s interesting to me that we’re seeing basically the same institutional dynamics play out on the Supreme Court that we’ve seen in Congress over the past decade: the rise of a conservative wing that is totally uninterested in compromise (the Freedom Caucus), and now a more assertive progressive wing, too.

ameliatd: Yeah, Nathaniel, I also wonder if it will lead to a growing perception among Americans that the court is political. I think that’s an increasingly unavoidable conclusion. But if Americans start to think that way — how does it change their perception of unelected justices who serve for life and rule on some of the country’s most important issues? 

alex: Don’t Americans already think that, Amelia?

ameliatd: Well, look at Congress’s approval rating, though! The Supreme Court is still doing a lot better, relatively speaking.

But it is relevant that more Americans are seeing the court as too conservative. That being said, Gallup found that only 37 percent of Americans have that view.

nrakich: Interestingly, that Gallup poll didn’t find a huge partisan split on approval of the Supreme Court; as of September 2021, 45 percent of Republicans approved of the court, while 36 percent of Democrats did. I feel like that is the next frontier for public opinion. Especially if the court overturns Roe v. Wade and delivers other conservative victories this term, I bet you’ll see its approval skyrocket among Republicans and plummet among Democrats.

ameliatd: The fact that most of the Supreme Court’s cases — even important ones — are highly technical works in their favor here. It’s easy for them to do radical things, like diminish the power of federal agencies, without anyone really understanding what they’re doing.

But I think some of that is already happening, Nathaniel. The question for me is whether the court does something so obviously political that public opinion really starts to mirror the polarized nature of the court.