Incredibly, despite saying he would never cave to political pressure from the rising left – he did. Justice Breyer, a congenial, occasional offbeat, but invariably collegial liberal – who got along with others on the court and did not throw jurisprudential bombs – will soon be gone, likely rolling off the High Court in June. What now?
What comes next will be one of the biggest political food fights in decades. Since the Filibuster is busted for judicial appointments, a decision that began with Senator Schumer busting it for those below Supreme Court under Obama, and Senator McConnell busting it the rest of the way for Supreme Court Justices under Trump, we are now standing in a pile of broken procedural glass – traditions are gone.
In practical terms, this means no 60-member vote of cloture is needed to get a new justice on the bench, just 51 votes. To get there, every Democrat must pony up, or one Republican for every lost Democrat, under current numbers, assuming Harris is the 50-50 tiebreaker as president – and is not, which would be awkward, the nominee herself.
Smart money says, the food fight will start right away, a shark feeding frenzy, and get worse as the year progresses. Mumbling will come out of the White House about consensus, being reasonable, creating unity, and other tried-and-true lies. The promise of a black woman on the court is out there.
In truth, the left will publicly and privately push Biden hard for a leftist, likely a neo-Marxist bomb-thrower, disguised as moderate until confirmed. The beleaguered, shrinking Democrat moderates will ask a reasonable candidate, one who comes off the bench, can build consensus.
Meantime, all the interest groups affiliated with so-called “identity politics” will push their own candidates. Most vocal minority groups will angle for firsts, even beyond the “first black woman,” perhaps also “LGBTQ,” “Transgender,” maybe a former illegal alien-Dreamer, non-lawyer professor, or socialist politician. All bets are off, especially if the first nominee folds.
Most of these will get lots of press, setting up the idea that a simple leftist is a great compromise candidate, halfway between the not-now-but-someday candidate and the liberal-but-not-liberal-enough (too old-fashioned) candidate. We shall see.
Republican voices will be given scant coverage, considered irrelevant. The current Supreme Court term will be used to showcase how terrible reading the Constitution as written can be, how much we need a leftist antidote to the non-activists – the current majority.
Cases to highlight how radical the current conservative majority is will include those imagining that the First, Second, Fourth, Fifth, Sixth, Tenth, and Fourteenth Amendments mean what they say. How radical is that?
These cases could in 2022 expand gun owner rights, end the idea that abortion appears in the Constitution, return the country to college admissions on merit, assure religious liberty, free speech, protection of private property, block open-ended federal mandates, end High Tech political manipulation (even if in a statute), and restore confidence in elections.
These cases – even one offending the left – will be used to justify the need for a leftist on the bench. Of course, cross-currents may upset the leftist push. One or two moderate Democrat Senators, a word or two from Breyer, sense that picking a leftist will motivate Republicans to turn out in 2022, or a general sense that polls are against Democrats might alter things, or not.
The only other factors to consider are ones that remain unknown. Could a leftist have ethical issues, embarrass the Democrats who are centrists, cause a balk? Could we find a nominee who has hidden foreign ties, was not well-vetted, stumbles?
Some random ideas are afloat, flavoring the food fight. Some say, appoint Harris (a former prosecutor, objectively poor Senator and VP), since that opens the VP slot for another. Except she could lose, creating another food fight – for 2024.
Some say, put Hillary in as VP, give her what her twisted, craven mind wishes for, forget the impact on the Democrat Party of 2024. Some say, do not go there, but set up the first gay, transgender Democrat for president via opening the VP slot, since Biden is fading.
Some say, think harder about options, do not waste this on Harris or a good jurist, be more realistic. Harris might not accept the slot, anyway – even if Hilary salivates over a VP slot.
In the end, what we know is this: A sitting liberal justice who swore he would not leave is resigning in June – to make way for a left-leaning justice. That means the left pushed him out. They could as pack the court in 2022, delegitimize it over abortion, gun rights, elections.
The left is powerful, and High Court – trying hard to stay away from politics – is being drawn into the vortex. Much about America and the Democrats will be revealed in what happens next, between now and summer. What happens in that food fight will affect Midterms, and America.
If the left overplays its hand, the vast center – already leaning center-right – will react with revulsion, and both 2022 and 2024 will tip hard to reason and conservatives. This decision – by a liberal justice to resign under leftist pressure – is revealing. “What now?” is the question.