Here's a thread from 2020.

Important constitutional analysis by @tribelaw: It will take 51 Senators, not merely 50 (a tie) + then @VP showing up to vote to break it, to confirm any new Supreme Court justice. #SCOTUS https://t.co/VDIaxgzZz2

— John Q. Barrett (@JohnQBarrett) September 24, 2020

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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.

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From TIME. Could take 60.

ETA- Hawg beat me to it

Interesting, but given that Pence broke a tie for a lower court judge, I don't think it matters. Although, I would agree for nominations it should require 51 Senators.

I assume Schumer would try to change the rules.

Some of you are saying the republicans should not fight this without even knowing what whacko Biden is going to try to nominate. If it's a full on socialist then they should fight like hell.

policywonk98 said:

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Tramp96 said:

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policywonk98 said:

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Tramp96 said:

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policywonk98 said:

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Really fascinating election year dynamics at play here.

GOP has the leverage along with Manchin and Sinema.

And there are some interesting Senate seats at play, namely GA and AZ, with sitting Dems running, along with some open seats that will make the open elections for those seats that much more interesting as the campaigns message based on whatever is playing out inside the confirmation hearings on Capitol Hill with the retiring Senator for those open seats.

I don't see how Biden could possibly put up a Kagan, Breyer, or Soto type nominee, he just doesn't have the numbers or popularity.

Breyer was confirmed in the 103rd, a 53v47 Senate, the same as Ginsberg. Clinton and the Dems of the 103rd were destroyed in the 94 election.

Kagan and Soto were confirmed in the 111. The eye popping and scary 58v42 Senate, which thankfully the American voter heavily corrected in 2010 and even more in 2012.

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I don't think these dynamics are in play here, actually.

Manchin and Sinema aren't going to block any SCOTUS nominee Biden puts up. Here's why:
1. They are still Democrats to the core, and I doubt Biden could nominate anyone so radical that they would object to.
2. The media isn't going to scandalize a Biden nominee like they did Trump's nominees, so it won't be such a political hot potato.
3. Because of #2, I just don't think this is going to get on the Give-a-Crap Radar of the average joe voter, so Manchin and Sinema will not feel like their political future is threatened if they vote to confirm.
4. The same goes for any other Senator in a potential swing state. This issue won't be one that they feel the voters will care too much about either way, because the media isn't going to make this front page news like they did with Kavanaugh and Coney Barrett.

So...Biden will make a way left liberal pick (just like Obama did with Sotomayor and Kagan) and the nomination will breeze through the Senate confirmation without breaking a sweat.

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See post above.

And I disagree. With a 50/50 split and the dems in more conservative states and districts up for reelection, SCOTUS nominations are absolutely at play. It's why McConnell was able to do what he did in 2016 to Garland.

I wish it were not this way. It should not be this way. But the Democrats 75 year strategy of getting the courts to legislate from the bench has made this process a far bigger deal than the passage of a $1-$6 Trillion funding package.

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I so hope you are right, I really really do. But I just don't see it happening. He's going to nominate someone radically left based on skin color and gender, and the Senate is going to confirm at record speed.

I hope I'm wrong and you are right, but I don't think I'm going to be wrong on this.

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Perhaps, but it will cost them. I suppose they could go all in if they think they have no shot at retaining either chamber. But they aren't replacing Thomas or Alito here. Going all in on replacing Breyer with an even more radical Breyer is a risk without that big of a reward. The GOP is already able to run a national campaign in this cycle that Biden and the Dems are radicals. A radical justice right before election will only give the GOP an even stronger narrative.

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Yeah, but at this point, I don't think they care. They're already resigned to the fact they are going to get hammered in November, so now it's just a matter of going all-in on getting as much radical crap passed through as possible.

They will trade a beating at the polls, especially since they figure it's probably a foregone conclusion anyway, to get a sure-fire, always will vote left of left, Supreme Court justice seated.

IDaggie06 said:

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Some of you are saying the republicans should not fight this without even knowing what whacko Biden is going to try to nominate. If it's a full on socialist then they should fight like hell.

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I think the Republicans will put up the appearance of a "fight", but this isn't going to be a Kavanaugh or Amy Coney Barrett type of opposition that we saw from the Left. For one thing, the media isn't going to be on the opposing side of the nominee, and thus there won't be the constant barrage against the opponent like with the aforementioned previous two. For another, Republicans typically suck at this kind of thing. They just don't have the intestinal fortitude to bring this fight down into the mud like the Democrats always do.

aggiehawg said:

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Here's a fun fact: Judiciary Committee in the Senate is evenly split. 11 Dems, 11 GOP. So if the committee splits down the middle, the nominee doesn't get out of committee.

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https://time.com/6142711/joe-biden-supreme-court-nominee-mitch-mcconnell-stephen-breyer/

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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 lawmakerhistorically, the Leader of the partybrings it to the floor for four hours of debate.

A majority of the Senate51 votes, typicallycan 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.

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And as if on cue, Sen. Graham confirms what I've been saying. Read between the lines...he's already surrendered:

https://www.yahoo.com/news/sen-lindsey-graham-says-democrats-191858969.html

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Republican Sen. Lindsey Graham of South Carolina said Democrats would likely be able to confirm his replacement without any Republican support

Graham noted that it's possible for Biden's nominee to be confirmed without the need for any Republican votes. Vice President Kamala Harris can cast a tiebreaking vote, granting Senate Democrats narrow control of the evenly-divided upper chamber.

"As to his replacement: If all Democrats hang together which I expect they will they have the power to replace Justice Breyer in 2022 without one Republican vote in support.

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Third time's a charm

Tramp96 said:

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And as if on cue, Sen. Graham confirms what I've been saying. Read between the lines...he's already surrendered:

https://www.yahoo.com/news/sen-lindsey-graham-says-democrats-191858969.html

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Republican Sen. Lindsey Graham of South Carolina said Democrats would likely be able to confirm his replacement without any Republican support

Graham noted that it's possible for Biden's nominee to be confirmed without the need for any Republican votes. Vice President Kamala Harris can cast a tiebreaking vote, granting Senate Democrats narrow control of the evenly-divided upper chamber.

"As to his replacement: If all Democrats hang together which I expect they will they have the power to replace Justice Breyer in 2022 without one Republican vote in support.

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He needs to read Time magazine to learn the rules in his committee.

Sarge 91 said:

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Tramp96 said:

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And as if on cue, Sen. Graham confirms what I've been saying. Read between the lines...he's already surrendered:

https://www.yahoo.com/news/sen-lindsey-graham-says-democrats-191858969.html

Quote:

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Republican Sen. Lindsey Graham of South Carolina said Democrats would likely be able to confirm his replacement without any Republican support

Graham noted that it's possible for Biden's nominee to be confirmed without the need for any Republican votes. Vice President Kamala Harris can cast a tiebreaking vote, granting Senate Democrats narrow control of the evenly-divided upper chamber.

"As to his replacement: If all Democrats hang together which I expect they will they have the power to replace Justice Breyer in 2022 without one Republican vote in support.

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He needs to read Time magazine to learn the rules in his committee.

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My point is...don't expect much of a fight from the GOP.

Maybe I'm just being cynical. But they made me this way.

Ridiculous that we are already using female pronouns. I hate this abomination of an administration.

Anyone else ready for some nonsensical theatrics from this beacon of wisdom?

Something else to consider Feinstein is in her late 80s, Leahy is over 80 as well. Feinstein keels over Newsome just appoints another lib Dem, may or not be on the committee. Schumer can sub someone in to keep the numbers. BUT, if Leahy keels over, Governor of Vermont is GOP. Power shifts in the Senate and Schumer is not Majority Leader.

There could be some twists and turns to come.

Sea Speed said:

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Ridiculous that we are already using female pronouns. I hate this abomination of an administration.

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Its really insensitive. How dare they assume this persons pronouns in 2022??

Sea Speed said:

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Ridiculous that we are already using female pronouns. I hate this abomination of an administration.

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Don't assume that she/it/they will prefer the use of female pronouns. They could choose any of the following:

e/eir, he/him, he/they, per/pers, she/her, she/they, they/he, they/she, they/them, xe/xem, xi/xir, ze/hir, ze/hem, zi/zer

Did Breyer not stipulate that he would name his replacement, or at least a list of names, before retiring? I thought that was somewhat normal.

Martin Q. Blank said:

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Did Breyer not stipulate that he would name his replacement, or at least a list of names, before retiring? I thought that was somewhat normal.

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Hell no. That's straying way outside your lane as a Supreme.

Do we have the date Breyer is officially stepping down?

SirGIGalot said:

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Do we have the date Breyer is officially stepping down?

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No. He'll stay until his successor is confirmed, last I saw.

That's intriguing.

This means the dems know they are losing the Senate in the mid terms.

TAMU1990 said:

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aggiehawg said:

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policywonk98 said:

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Really fascinating election year dynamics at play here.

GOP has the leverage along with Manchin and Sinema.

And there are some interesting Senate seats at play, namely GA and AZ, with sitting Dems running, along with some open seats that will make the open elections for those seats that much more interesting as the campaigns message based on whatever is playing out inside the confirmation hearings on Capitol Hill with the retiring Senator for those open seats.

I don't see how Biden could possibly put up a Kagan, Breyer, or Soto type nominee, he just doesn't have the numbers or popularity.

Breyer was confirmed in the 103rd, a 53v47 Senate, the same as Ginsberg. Clinton and the Dems of the 103rd were destroyed in the 94 election.

Kagan and Soto were confirmed in the 111. The eye popping and scary 58v42 Senate, which thankfully the American voter heavily corrected in 2010 and even more in 2012.

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Bet the Dem attacks on Manchin and Sinema stop now.

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And the RNC needs to be running ads in WV and AZ right now.

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Yeah this should help any red wave in November.

aggiehawg said:

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twk said:

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aggiehawg said:

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Judge Ketanji Brown Jackson not only attended Harvard law she's also a member of the Harvard Board of Overseers since 2016. So that affirmative action case involving Harvard would require her recusal were she on the Court.

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Hilarious. Would certainly make for some fun questions during confirmation, particularly about Biden's promise to appoint a black woman.

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I would be somewhat surprised if it were her since she's only been on the DC Circuit COA since last June. She was narrowly confirmed to fill Garland's seat by a vote of 53-44.

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I was under the impression that the primary reason she was appointed to that position was to set her up for eventual SCOTUS nomination. Timeline moved faster than they expected.

Tramp96 said:

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IDaggie06 said:

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I know it goes with out saying, but so much irony in that Joe is limiting this to a black female in order to not be racist. The exact opposite of what MLK stated. Racism and sexism is certainly live and will in the United States of Propaganda..

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The Left do not view affirmative action as racist.

The Left are also mentally ill.

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I bet if you had an Affirmative Action surgeon looking at them on the operating table, and they could replace that surgeon with a different that was not, they would.

Mr. AGSPRT04 said:

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Martin Q. Blank said:

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Did Breyer not stipulate that he would name his replacement, or at least a list of names, before retiring? I thought that was somewhat normal.

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Hell no. That's straying way outside your lane as a Supreme.

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Pretty sure that is the deal one of the Justices got last term,

Still think Repubs should fight this and block it in Committee or force Harris to use her tie break vote if she's even able to until they take back the Senate.

pic.twitter.com/V6VnPI95tt

— Art TakingBack 🇺🇸 (@ArtValley818_) January 26, 2022

Sq 17 said:

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Mr. AGSPRT04 said:

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Martin Q. Blank said:

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Did Breyer not stipulate that he would name his replacement, or at least a list of names, before retiring? I thought that was somewhat normal.

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Hell no. That's straying way outside your lane as a Supreme.

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Pretty sure that is the deal one of the Justices got last term,

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"The deal?" Like they negotiated some constitutional prerogatives for themselves during annual performance review in lieu of a pay increase?

Ginsburg's dying wish was supposedly that Trump would not choose her successor. But it wasn't up to her. It's not Ginsburg's or Breyer's office, to be bequeathed like private property or hereditary title. It's the Peoples' office, to be filled through nomination by POTUS with the advice and consent of the States' representatives in the upper chamber of the legislature.

I'm honestly rooting for an Anita Hill nomination so the ****storm that is Joe Biden's career can come full circle.

Texasaggie32 said:

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Still think Repubs should fight this and block it in Committee or force Harris to use her tie break vote if she's even able to until they take back the Senate.

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This article from the Daily Wire reports that McConnell could block a nominee in committee and force a cloture vote of 60 instead of a 51 majority.

McConnell Could Stop Biden From Replacing Justice Stephen Breyer Due To 'Little-Noticed Backroom Deal': Report

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"If all 11 Republican members of the Judiciary Committee oppose Biden's pick and all 11 Democrats back her, the nomination goes inert. The nomination doesn't die, but it does get parked until a lawmakerhistorically, the Leader of the partybrings it to the floor for four hours of debate," the report added.

"A majority of the Senate51 votes, typicallycan 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."

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I did not realize this. I doubt he changes course, but still interesting to see they almost "Joe Bidened" his retirement.

https://www.washingtonexaminer.com/opinion/washington-secrets/by-the-book-breyer-said-to-be-miffed-retirement-leaked?_amp=true