What Breyer’s retirement means for Biden

The retirement of Stephen Breyer is a rare piece of good news for Joe Biden. With the president and his team busy deciding which black woman they will pick to replace the court’s oldest justice and the senior member of its liberal wing, it’s not hard to see where the story ends. This may be the first time a president has had to get a Supreme Court nomination through a 50-50 Senate, but surely even this White House will manage to get the job done.

But the politics of the nomination process are less predictable than…

The retirement of Stephen Breyer is a rare piece of good news for Joe Biden. With the president and his team busy deciding which black woman they will pick to replace the court’s oldest justice and the senior member of its liberal wing, it’s not hard to see where the story ends. This may be the first time a president has had to get a Supreme Court nomination through a 50-50 Senate, but surely even this White House will manage to get the job done.

But the politics of the nomination process are less predictable than its outcome. It’s not hard to see the political upside for the president. A disunited party might rally around Biden’s pick while the nomination process could remind them who the real enemy is. As my colleague Matt Purple speculates, “a Supreme Court confirmation fight will energize his left-wing base, currently despondent over a Build Back Better bill they have no clue how to pass, a bout of inflation they’re pretending doesn’t exist, and Covid measures even they’re starting to doubt. A battle over the judiciary will turbocharge them because it will place on the table one of their favorite issues: abortion.” That seems about right.

Chuck Schumer is planning a speedy confirmation in the mold of Amy Coney Barrett’s 2020 whizz through the Senate. “In the Senate, we want to be deliberate. We want to move quickly,” he said yesterday. “We want to get this done as soon as possible.”

But the confirmation fight is not without its hazards. The right tends to be more interested in the judiciary than the left. And so, for all that it might help party unity, its not clear that the net electoral effect of the process will be positive. That said, it’s probably not that significant one way or another. Though low stakes are no guarantee of good behavior in Washington.

Republicans will aim to use the process to tie the views of Biden’s pick to moderate Democratic candidates in close races. Democrats will similarly use the process to underscore the differences between the parties on a number of hot-button issues and trumpet the pick as a big win for the administration. In other words, politics as usual.

As for the consequences for the court itself, a reliably liberal octogenarian justice will make way for a presumably much younger and at least as liberal successor. And when it comes to judging Biden’s pick, some conservatives are skeptical about the significance of the exact extent of the candidates progressivism. A National Review editorial argues that “conventional, institutionalist liberals tend to be every bit as results-oriented and lockstep-loyal on the bench as hair-on-fire progressives… Democrats have not send a genuinely heterodox justice to the Court since Byron White was appointed by John F. Kennedy.” Perhaps that overstates things a little; in a time of gratuitous institutional sabotage on both the left and the right, even a shallow institutionalism surely has some value.

For now, though, Biden won’t be too worried about such long-term matters. Instead, he’ll be enjoying the short-term benefits of Breyer’s decision, and breathing a sigh of relief at the fact that something, finally, has gone his way.

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SALT boo

Readers may have noticed that it’s been a while since much prime DC Diary real estate was dedicated to exactly what phoenix will soar triumphantly from the ashes of Biden’s failed Build Back Better legislation. Last week the president confirmed that he will break the bill up and attempt to pass measures in smaller packages. While this procedural shift is little more than an acknowledgement that the president doesn’t have the votes for the bigger bill, it also disguises just how much more work there is for senior Democrats to do.

The administration acknowledges that it will settle for a smaller spending package, but it is a lot more sheepish when it comes to admitting which measures are for the chop. Meanwhile on the Hill, the party’s factions appear no less determined to make sure their pet policies make the cut.

Take the SALT deduction row. (Never forget that the second most costly item in Biden’s historic, generation-defining package of social and climate change spending was in fact a tax cut for wealthy homeowners in Democratic states.) The contours of the debate over this bung are exactly as they were during those feverish days of BBB negotiation. On Wednesday, Bernie Sanders said he was happy to see that the SALT reforms weren’t going to make it in to Biden’s new legislative proposal. But those lawmakers for whom SALT is the number one issue show no sign of backing down. “SALT remains a top priority wrote Representatives Josh Gottheimer of New Jersey, Tom Suozzi of New York and Mikie Sherill of New Jersey. “We support the president’s agenda, and if there are any efforts to include a change in the tax code, then a SALT fix must be part of it. No SALT, no deal.”

Biden should enjoy the Supreme Court-induced party unity while it lasts.

Sarah the superspreader

On Monday we noted that Sarah Palin and the New York Times would be thrashing it out in court this week. But the hearing was postponed after the former vice presidential candidate tested positive for Covid. And so it was a surprise to see photographs of Palin out and about in the Big Apple just two days later. The Alaskan was snapped at Upper East Side Italian spot Elio’s. “In accordance with the vaccine mandate [Palin is unvaccinated] and to protect our staff, we seated her outdoors,” Elio’s operations manager Luca Guaitolini told the Daily Mail.