Supreme Court Justice Stephen Breyer is set to announce his retirement at the age of 83, avoiding a repeat of the debacle created by Ruth Bader Ginsburg’s untimely death and handing the Biden administration a chance to install the first new liberal justice on the court since Elena Kagan in 2010.
Standing in the way, as always, is the Other Joe. Our task, once again, is to read the tea leaves and arcane symbols scrawled in clean coal on cavern walls in order to divine what West Virginian Senator Joe Manchin will do next. As Vox notes, pondering this exact question, Manchin has so far voted to confirm every lower court judge Biden has nominated, including D.C. circuit court judge Ketanji Brown Jackson, who is the presumptive frontrunner to be Biden’s Supreme Court nominee. He voted for Neil Gorsuch and Brett Kavanaugh, Trump’s first two Supreme Court nominees, but opposed the confirmation of Amy Coney Barrett on the grounds that her nomination was squeezed in right before the 2020 election.
The best strategy, therefore, might be to get this thing locked in as soon as humanly possible. As we saw with the infrastructure and budget reconciliation bills, Manchin’s first impulse is often to slow things down, so any additional delay probably only hurts Democrats’ chances. It appears that Senate Majority Leader Chuck Schumer feels the same way. CNN reports that he wants to pursue a “quick timeline” similar to the expedited process that seated Justice Amy Coney Barrett in the waning days of the Trump administration. Yet, even that may run into the grinding gears of Democratic incompetence, as 88-year-old California Senator Dianne Feinstein, the former ranking member of the Senate Judiciary Committee, does not appear to be in a rush.
Manchin might want concessions, too. Until this point, he’s likely seen pushing Biden’s various nominees through as his bare minimum obligation to the party, but the prospect of a Supreme Court seat gives him a new stratosphere of leverage. Considering the contentious negotiations over Build Back Better and the continued effort to get climate provisions or social safety net expansions from the dead bill passed in a different form, Manchin once again has an enormous buffet of pork that he can cull from any prospective Biden agenda.
There are some scenarios where Manchin’s vote is less vital, but all rely on Biden courting some of the so-called moderate Republicans like Sens. Susan Collins, Lisa Murkowski, and a very small handful of others. He’s been almost entirely unsuccessful at courting them thus far.
Manchin’s future in the Senate has always been in flux. Unlike Kyrsten Sinema, he seems somewhat more attached to the gravitas of his role, despite his comfortable landing pad in the coal industry. Blocking a president’s Supreme Court pick would probably be the final nail in the coffin for his future with the Democratic Party, but in heavily red West Virginia, it’s entirely possible he thinks he can spin it enough to pull a Joe Liebermann and become an Independent, if not defect to the GOP. At this point, it’s hard to see what’s holding him back.
Biden’s approval is on life support, and confirming a single justice might be one of the only chances he gets to burnish his legacy and stave off what seems to be an imminent flood of theocratic authoritarianism. Justice Breyer will stay on the bench for six more months, meaning his final days may be spent penning minority opinions as the overwhelmingly conservative bench potentially overturns Roe v. Wade. Manchin’s vote won’t change that future — Ginsberg’s death in the Trump years sealed that in — but Biden’s future now rides on undoing as much of his predecessors’ work as possible, and stemming the tide that Trump unleashed for as long as he can. We’ll have to wait and see if Joe Manchin will blow up the dam.