Supreme Court Justice Stephen Breyer doesn’t seem likely to retire soon, but Democrats have good reason to hope he does.
Democrats really want Justice Stephen Breyer to retire from the Supreme Court, but Breyer is giving them no reason to feel optimistic that President Biden will have the opportunity to appoint his replacement anytime soon.
Perhaps this reflects a worry that the current razor-thin Democratic Senate majority is not built to last, and the Biden administration may face the prospect of getting their choice confirmed by a GOP-controlled Senate sooner rather than later.
First, if something happens to 81-year-old Patrick Leahy (who was hospitalized in January) or Bernie Sanders (who had a heart attack in 2019), and Vermont governor Phil Scott appoints a Republican replacement for the six months or so until a special election, Mitch McConnell would become Senate Majority Leader again.
Even if Leahy – who’s up for reelection in 2022 – and Sanders are hale and hearty past the midterms, Democrats have reason to worry they may not control the chamber after December 2022.
The conventional wisdom is that the 2022 Senate elections will be tough for Republicans, who need to keep open seats in Missouri, North Carolina, Ohio and Pennsylvania. In Iowa, everyone’s waiting to see if Chuck Grassley chooses to run for another term, and Democrats think they have a good shot at knocking off Ron Johnson in Wisconsin. (Then again, they were sure Russ Feingold was going to knock him off in 2016, too.)
Florida’s been breaking Democrats’ hearts for a while, so while Democrats will probably talk themselves into believing they can beat Marco Rubio in Florida, the incumbent looks like the much safer bet.
Midterms traditionally go badly for the president’s party, and the Republicans have their opportunities for pickups as well, most notably in the special elections that didn’t go their way in 2020. Mark Kelly will need to defend his seat in Arizona, where he won by 78,000 votes out of 3.3 million cast, and Raphael Warnock won by 93,000 votes out of 4.4 million cast in Georgia in the runoff. The slightest of momentum for the Republicans, and the slightest dip in Democratic grassroots enthusiasm, and those seats could turn red again. In New Hampshire, governor Chris Sununu, won reelection last year by the striking margin of 65 percent to 33 percent. If he runs for Senate as many Republicans hope, suddenly senator Maggie Hassan ‘s reelection becomes a much riskier bet.
Democrats could pick up Senate seats in the 2022 midterms, particularly if Republicans have messy primary fights and lingering divisions in those open-seat Senate races. Or the midterms could turn out to be a wash. But even a one seat gain for the Republicans would bring back divided government, and give the GOP the ability to reject Biden’s judicial nominations.
While a Republican-controlled Senate could confirm a Democratic president’s Supreme Court nominee, the last time that happened was… 1895.