On 01/27/2022 Supreme Court Justice Stephen Breyer announced his retirement, which is to take place during the court’s summer recess “assuming that by then [a] successor has been nominated and confirmed.” This presents the Biden administration with their first opportunity to nominate a justice to the court. The political make-up of the Senate may have been a cause for concern in the past, but since the adoption of the nuclear option in 2013, the vote threshold for Supreme Court appointments decreased from a super-majority to a simple majority. The Supreme Court is currently seeing an unprecedented political climate due to this rule change. Political polarization in the Senate has forced congressmen to alter parliamentary rules, effectively overriding filibusters and only requiring a simple majority to pass legislation, resolutions, and appointments.
Currently, there are 50 Republicans (minority), 48 Democrats (majority), and 2 Independents, who both caucus with the Democrats in the 117th United States Congress. Even a vote down party lines, which results in a tie, favors the Democratic Party since Vice President Kamala Harris can “cast a vote in the Senate only in order to break a tie” per Article I, Section 3, Clause 4 of the Constitution. It would be the first time in United States history that a Vice President breaks a tie in the Senate over a Supreme Court appointment. But did the framers of the Constitution intend for the VP to cast the tie-breaking vote on a Supreme Court appointment? While the Constitution never explicitly states that appointments require a supermajority vote, a tie-breaking vote made by the VP to appoint the Presidents nominee appears to conflict with the purpose of the nomination/appointment process.
All Supreme Court appointments since the adoption of the nuclear option have been decided on a tight margin. Justices Gorsuch, Kavanaugh, and Barret were all nominated with less than a 54% majority vote. Moreover, since 2013, all Supreme Court appointments have been younger than the average age of a Supreme Court Justice at the time of appointment, which is 53 years old. Presidential administrations are taking advantage of the congressional rule change to nominate young justices that align closer to their political objectives. These justices may sit on the bench for well over 40 years, making their nomination one of the most influential decisions a president can make.
This blog post is part of the CIMA law group blog. If you are located in Arizona and are seeking legal services, CIMA law group specializes in Immigration law, Criminal Defense, Personal Injury, and Government Relations.
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