Schumer finds unity moment in Supreme Court fight

Senate Majority Leader Charles Schumer (D-N.Y.) is looking to go on offense in the looming Supreme Court fight and shift gears after two high-profile setbacks.

Justice Stephen Breyer’s announcement that he’ll retire this summer, presuming his successor is ready to go, sets up a high-stakes battle for Schumer, who will be the first majority leader to need to get a Supreme Court nominee confirmed in a 50-50 Senate.

But it also puts him in line for a big win, if he can keep his 50-member caucus united after months of high-profile tensions.

“It will be as much of a victory for Chuck Schumer as it will be for Joe Biden. … Schumer’s got a difficult caucus, obviously, and this is going to be a historic nomination,” said Meagan Hatcher-Mays, Indivisible’s director of democracy policy.

“The stakes are pretty high for Chuck Schumer, but he’s done really, quite a good job over the last year of the Biden administration getting his nominees through,” she added. 

Schumer is making it clear that he intends to move quickly once Biden names his nominee, who is expected to be the first Black woman nominated to the Supreme Court.

The Democratic leader is eyeing a similar timeline to the one Republicans used to confirm Justice Amy Coney Barrett, a source familiar with his planning told The Hill. The Senate voted to confirm her 30 days after then-President Trump announced her nomination.

“The Senate will have a fair process that moves quickly so we can confirm President Biden’s nominee to fill Justice Breyer’s seat as soon as possible,” Schumer said after Breyer’s announcement.

Democrats on the Senate Judiciary Committee — led by Sen. Dick Durbin (D-Ill.), Schumer’s No. 2 — also held their first meeting on the issue, via Zoom, on Thursday night, as they lay the groundwork and wait for Biden to name a nominee.

On paper, the Supreme Court confirmation process might be read as placing Schumer in another no-room-for-error showdown, where much of the public focus will be on members of his party and the potential for Democratic divisions.

Democrats can confirm a Supreme Court nominee on their own if every member of the Democratic caucus supports the person and Vice President Harris breaks the tie.

But Schumer is entering the Supreme Court discussion on easier footing than he’s had in recent Democratic brawls. Unlike legislative fights and Democratic opposition to some of Biden’s executive nominees, Democrats have been totally unified in their support of the 42 judicial nominees they’ve confirmed for Biden so far. 

“Just judging by the way 2021 and early 2022 have gone in terms of judicial confirmations, we feel pretty good,” said Adam Bozzi, a spokesperson for End Citizens United.

That’s a shift from the dynamic on Build Back Better (BBB), Biden’s sweeping social and climate spending bill, and a long-shot, Biden-backed push to change the Senate’s rules to pass voting rights, both of which had Schumer having to manage high-profile infighting amongst his own members. 

The back-to-back setbacks reopened old fault lines among progressives and moderates, the House and Senate, and even between Schumer and Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.). And many of those same tensions are lingering as Democrats try to revive BBB. 

“It is … being opposed by two members of the Democratic caucus. Forty-eight members are for this, the House of Representatives are for this, two Democrats are against it,” Senate Budget Committee Chairman Bernie Sanders (I-Vt.), who has opened the door to supporting primary challenges to Manchin and Sinema, said during an event with advocates this week. 

But Democrats view the upcoming Supreme Court nomination, absent a massive stumble, as an opportunity to unify the Democratic caucus heading into November and deliver a big win for Biden.

“I don’t think that it will be particularly difficult to confirm. … I think there will be some Republican yeses, and I think there will be overwhelming Democratic support,” Sen. Sherrod Brown (D-Ohio) told WTRF, a local TV station that is part of Nexstar Media Group, which also owns The Hill. 

That’s making activists less worried about Schumer needing to arm-twist Manchin and Sinema, the two senators who have emerged as perennial headaches for progressives, and hopeful for the potential for bipartisan support. GOP Sens. Lindsey Graham (S.C.) and Susan Collins (Maine) are the two Republicans left in the chamber who voted for former President Obama’s Supreme Court nominees. 

“I think it’s very different from a situation where it was true from the jump that this was going to be a party-line vote, so you’re asking Manchin to stay on board because you can’t afford to lose him,” said Brian Fallon, the co-founder and executive director of Demand Justice, contrasting the Supreme Court nomination with the dynamic over BBB. 

“In a scenario where there’s the very real prospect of bipartisan support from the beginning, it just changes the complexion of the whole conversation,” Fallon, who is also a former Schumer staffer, added. 

Manchin has typically been deferential to a president’s judicial nominees. He voted for Trump’s first two picks, Justices Neil Gorsuch and Brett Kavanaugh, and said he only opposed Barrett’s nomination because it was in the lead up to the 2020 elections after Republicans refused to move Merrick Garland in 2016. 

Manchin said during an interview with West Virginia MetroNews’s Hoppy Kercheval that he was open to supporting a nominee that is more ideologically liberal than he is, while quipping that “it’s not too hard to get more liberal than me.” 

“As far as just the philosophical beliefs, no, that will not prohibit me from supporting somebody,” Manchin added.

Sinema, in a statement, said that she would make her decision based on three qualifications: “whether the nominee is professionally qualified, believes in the role of an independent judiciary, and can be trusted to faithfully interpret and uphold the rule of law.” 

Democrats have been increasingly energized by Supreme Court fights, and judicial nominations more broadly, after watching Republicans, led by then-Senate Majority Leader Mitch McConnell (R-Ky.), block Garland and get three justices confirmed for Trump. 

Schumer, who is up for reelection in 2022, has touted Democrats’ ability to get more than 40 judicial picks through the Senate in Biden’s first year, the most since former President Reagan’s first year in office. 

And activists credit Schumer with making it clear at the outset that he’ll move quickly on whoever Biden picks, characterizing the win as a boon for the party’s base. 

“The crown jewel of Biden’s presidency thus far has been his judicial nominees. And this is really a chance for him to make … a lifetime impact on the makeup of the court,” said Indivisible’s Hatcher-Mays. “It’s going to be exciting for the movement to get a win like that.”