Senate Minority Leader Mitch McConnell (R-KY) can reportedly stop Democrat President Joe Biden from being able to replace Supreme Court Justice Stephen Breyer should Breyer indeed decide to retire as expected.
With judicial nominees, only 51 votes are needed to confirm a nominee, commonly referred to as the “nuclear option.” In a 50-50 tied Senate, Democrats will likely need all their Senators to vote for the nominee and then would need Vice President Kamala Harris to be the tie-breaking vote.
“But the nuclear option can go into motion only if the Judiciary Committee reports the nomination to the floor, a procedural move that says whether a majority on the committee recommends the full Senate consider the pick,” TIME Magazine reported. “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.”
“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 lawmaker—historically, the Leader of the party—brings it to the floor for four hours of debate,” the report added. “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.”
McConnell told reporters on Wednesday that he was going to wait to comment on Breyer’s retirement until an official announcement was made.
Multiple news organizations reported on Wednesday that sources close to Breyer had said that he was going to retire — and that Democrat President Joe Biden was expected to make an official announcement about the matter this week.
“Breyer, 83, the oldest member of the court, was appointed in 1994 by President Bill Clinton,” The New York Times reported. “After the death of Justice Ruth Bader Ginsburg in 2020 and the appointment of Justice Amy Coney Barrett by President Donald J. Trump, he became the subject of an energetic campaign by liberals who wanted him to step down to ensure that Mr. Biden could name his successor while Democrats control the Senate.”
Breyer was reportedly not happy that the news broke on Wednesday, according to Fox News anchor Shannon Bream.
“Multiple sources tell me Justice Breyer was not planning to announce his retirement today,” Fox News anchor Shannon Bream wrote on Twitter. “They describe him as ‘upset’ with how this has played out. We still await any official notice from his office and/or the #SCOTUS public information office.”
A short time later, Bream added, “A bit more clarity. I’m told Justice Breyer had firmly decided on his own to retire and that an announcement was due very soon. And while it appears someone jumped the gun on that, better to characterize him as surprised by events today than ‘upset.’”
Ron Bonjean, former top spokesman to the Speaker of the House and the Senate Majority Leader, responded to the news by writing: “Potential retirement conversations between Justices and the WH happen at a very high level. For a news leak like this to happen is highly unusual.”
Potential retirement conversations between Justices and the WH happen at a very high level. For a news leak like this to happen is highly unusual. https://t.co/kkuCxJJ7tV
— Ron Bonjean (@RonBonjean) January 26, 2022