On paper, it should be smooth sailing for Biden to get his nomination confirmed. Since Senate Republicans carved out Supreme Court picks from the filibuster in 2017, the President only needs a simple majority to move through the confirmation process.
But the reality is likely to be messier. With the midterms approaching, Senate Republicans are likely to oppose the nomination — whoever it is — and use it to rally the base. Senate Minority Leader Mitch McConnell and his troops could warn that Biden’s pick will threaten constitutional rights and open the door to all sorts of dangerous decisions — whether it be protecting women’s reproductive rights, allowing for stronger controls of gun sales or permitting federal mandates for life-saving vaccines.
Biden should be able to ignore all of that — if he has the support of Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona. But this raises the question of whether the President will face a repeat of the Build Back Better battle, with just two Democrats tanking the party’s ability to move forward and allowing the Republican minority to rule the roost.
With the Biden administration and the Democratic Party already facing a difficult moment, they can’t afford any defections with a slim, 50-vote majority in the Senate. This nomination also has the potential to generate some much-needed excitement within the party going into the midterms, allowing the President to make his mark on a Supreme Court that now has a formidable 6-3 conservative block.
Some Democrats might assume this will go smoothly. After all, how could Manchin or Sinema possibly cause problems in what would be a signature decision by the administration? We shouldn’t underestimate the willingness of these two senators to go against the grain, having forged identities as the voices of “moderation.” If McConnell — with the help of Fox News and other right-wing media outlets — can paint Biden’s nominee as one more example of a radical leftist agenda, it’s not difficult to imagine Manchin and Sinema claiming the mantle of bipartisanship to vote no until they can force the President to nominate someone as far to the center as possible.
This is a pivotal moment, and Biden can’t afford to let Manchin and Sinema short-circuit his administration again.