WASHINGTON — It was testament to the collapse of the Senate’s judicial ratification machinery that the first question many asked this past week regarding an upcoming Supreme Court vacancy was whether Democrats could install a new judge entirely on their own.
The answer is yes, if the party stays together. And the prospect of President Biden’s eventual candidate getting only Democratic votes is hardly far-fetched, given the bitter history of recent Supreme Court confirmation battles.
Judge Amy Comey Barrett, the last member of the court to be confirmed by the Senate, did not receive a single Democratic vote. But Republicans had a 53-to-47 lead and could afford to lose a few colleagues by slamming her nomination just before the 2020 presidential election.
With their 50-seat minimum majority, Democrats won’t have that luxury after Biden nominates the first black woman to court sometime in the coming weeks. Given the toxic partisan atmosphere surrounding today’s Supreme Court battles, it’s conceivable that she could make history not only because of her gender and race, but as the first person brought to court by a casting vote from the vice president. was exalted.
It would be a far cry from the simple voice tuning of many of its predecessors in the 1960s. Or the 98-to-0 confirmation of Judge Antonin Scalia, a leading right-wing conservative, in 1986. Or even the 87-to-9 vote in 1994 for Judge Stephen G. Breyer, a member of the court’s liberal wing, who announced on Thursday that he would resign after nearly three decades.
The decline in Supreme Court consensus affirmations was abrupt and the escalation of partisan warfare was sharp.
Deep bitterness lingers over the Democratic attack on Robert H. Bork in 1987; the routine use of filibusters against court nominees from both parties, beginning during the administration of President George W. Bush; Judge Merrick B. Garland’s Republican blockade in 2016; Judge Brett M. Kavanaugh’s tumultuous confirmation in 2018; and the hard-hitting Republican move to rush Judge Barrett to court two years later.
With the Supreme Court ruling on so many of the most polarizing issues of the day — including abortion rights and affirmative action — neither side is willing to give up much ground, and both show their battle scars.
“It’s a sad commentary on the nomination process that it’s fallen apart so much over the years,” said Maine Senator Susan Collins, one of the handful of Republicans considered in the game as potential mainstays of Mr. Biden’s choice. “If you look at the incredibly strong voice that confirmed Stephen Breyer, you just don’t see it these days.”
Democrats would like to avoid a skin-of-the-teeth party line vote for whoever puts forward Mr. Biden. One of the first phone calls from Illinois Democrat Richard J. Durbin and chair of the Judiciary Committee was to Ms. Collins, promising her all the materials and assistance he could provide to help her evaluate the prospective candidate. .
Democrats also hope that the fact that Mr. Biden’s election would replace a liberal justice system and not tip the ideological balance of the strongly conservative court — and the fact that she will be an African-American woman — will deter Republicans from a scorched earth campaign when their odds of winning are low.
But while Republicans promise an unbiased review of the nominee, hard feelings about previous clashes over the confirmation, most recently Judge Kavanaugh’s battle against sexual assault charges, are never far from the surface.
“Whoever nominates the president will be treated fairly and with the dignity and respect that someone of his or her caliber deserves, something Judge Kavanaugh and other Republican nominees of the past have not received,” Texas Senator John Cornyn, a senior Republican member of the Judiciary Committee, said in response to Judge Breyer’s retirement.
In addition to Ms. Collins, another Republican who will be getting the attention of Democrats is Senator Lisa Murkowski of Alaska, a frequent supporter of Democratic presidential nominees and the only Republican to oppose Judge Kavanaugh.
Ms. Murkowski is running for re-election this year under a newly ranked home electoral system. She is already being opposed by a far-right conservative strongly backed by former President Donald J. Trump, who is furious with Ms. Murkowski for voting to convict him during his impeachment trial following the January 6 attack on the Capitol. By siding with Biden in court, she could attract the Democratic and independent voters she might need to win under the new electoral rules in her state.
South Carolina Republican Senator Lindsey Graham and former Judiciary Committee chairperson has also in the past deferred Democratic presidents and voted for judges and junior judges they put forward.
Last year, Mr. Graham, Ms. Collins and Ms. Murkowski were the only three Republicans to support Judge Ketanji Brown Jackson, a frontrunner to succeed Judge Breyer, for a seat on the influential U.S. Court of Appeals for the District of Columbia Circuit.
Supporting someone for a seat on the court circuit is no guarantee of supporting that same person before the Supreme Court. However, it would be more difficult to support someone in the Supreme Court after opposing that person in a lower court, making it unlikely that any of the 44 Republicans who opposed Judge Jackson would change course and support her now. . Everyone was well aware at the time that she was a future Supreme Court nominee. Three Republicans were absent.
Mr. Biden could also choose South Carolina federal court judge J. Michelle Childs, who is strongly backed by Representative James E. Clyburn, a powerful state legislator and No. 3 House Democrat. If Mr. Biden nominates Judge Childs, his selection could put pressure on Mr. Graham and South Carolina’s other Republican senator, Tim Scott, to support her.
But loyalty to the home state is no guarantee. Colorado Democrat Senator Michael Bennet opposed the nomination of Neil M. Gorsuch, a Colorado native, to the Supreme Court, even though the senator suggested him at his hearing.
Judge Gorsuch’s case is instructive. Though highly conservative, he was the kind of highly accomplished, thoroughbred, and qualified candidate that a Republican president could have put forward in the past with the expectation that he would gain significant support in the Senate despite ideological differences.
But since Judge Gorsuch took the seat held open by Judge Garland’s nearly year-long blockade and nominated by Mr. Trump, most Democrats have declined. Only three voted for his confirmation. Only one, Senator Joe Manchin III of West Virginia, remains in the Senate; he was also the only Democrat to vote for Judge Kavanaugh.
Another potential candidate with a voting history in the Senate is Justice Wilhelmina M. Wright of Minnesota federal court, who was confirmed in 2016 by a vote of 58 to 36. Thirteen Republicans voted for her, and five of them remain in the Senate today. Senate. including Senator Mitch McConnell of Kentucky, the minority leader. But a vote for a candidate for a district court does not equate to a vote to place someone on the highest court.
Even before the candidate is known, it’s clear that the outcome in the Senate will most likely be highly partisan, with the candidate getting a few Republican votes at best — and maybe none at all. For a country torn by partisanship and a court grappling with its image and credibility, that is far from an ideal outcome.
“I really think it would be detrimental to the country to have a repeat of what we’ve seen with the last two nominees confirmed so narrowly,” Ms Collins said. “I just don’t think that’s good for the country, nor for the court.”