Breyer Quits, Signaling Dems Know They’re Done in ’22

BUCK: Look, there are some things that are obvious about the Supreme Court justice opening here with Breyer set to retire. It rhymes. Sorry. It’s gonna be a leftist. It’s gonna be a lib they replace him with, a true judicial activist. But it’s also, according to Biden, gonna be more specific than that. What do you think this turns into? What’s the situation?

CLAY: Well, he promised… This news just broke literally as we were about to come on the air, Stephen Breyer stepping down. I think there’s a bunch of big headlines associated with this decision. First of all, it’s important to remember that Joe Biden promised that he was going to put a black woman on the on the Supreme Court. He not only said that he was going to put a woman on, he specifically said that he was going to put a black woman on.

So the potential list of nominees is probably the shortest list that has ever existed in the history of the Supreme Court because there just aren’t that many black women sitting at high levels of the judiciary that could be available as nominees for this seat. So let’s start there. So it’s a relatively short list. Joe Biden has already promised that it’s going to be a black woman. Now, there are several different angles associated with this.

First of all, let’s talk about Breyer’s decision. This is an implicit acknowledgment that he does not feel good about Democrats retaining the Senate in the midterms coming up in 2022. Now, the Senate is a lot more up in the air if you look — and I’m kind of a political junkie. So you look at all these different states and who’s gonna win them. Remember, Democrats have the 50-50 tie-break right now.

But this is an implicit acknowledgment that he does not like the odds there. And, by the way, Mitch McConnell told CNN, Senate Minority Leader Mitch McConnell, that there was roughly a 50-50 chance he thought that Republicans would take back the Senate. So, in other words, it’s not the slam dunk that taking back the House appears to be right now, even if you get a Republican surge in the midterms.

But this is a sign that Democrats are not particularly optimistic about taking back the Senate, and that might also be a sign — Mitch McConnell’s prediction — that he’s trying to play down expectations as opposed to set them too high. Also here, what is going to happen? We saw what a — and I want to curse, but I’m not — crap show the Brett Kavanaugh Senate judiciary hearings were.

We saw not as much of a fracas surrounding Amy Coney Barrett. Certainly, Gorsuch was not as controversial, either. What will this process look like? Will Republicans be united in opposing whoever Democrats put forward? If they are, then that would demand that Kamala Harris — as the president of the Senate, the tiebreaker there — vote 50-50 to break the tie and put someone onto the Supreme Court — and there’s also gonna be a lot of talk about this.

Is there any possibility…? Given that his criteria is he’s going to put a black woman on the Supreme Court, is there any possibility that this is the exit strategy for Democrats to run away from Kamala Harris as their presumptive takeover candidate for Joe Biden? Could they, in some way, put her on the Supreme Court? We’ll get into whether or not these she’s a qualified. She at least qualifies based on Biden’s standard of being a black woman, and then it turns into an interesting question.

But would Democrats oppose that, or would they think, “Hey, you know what? I kind of like the idea of Kamala Harris on the Supreme Court. Let’s get her out of the political equation in the same way,” and could Kamala Harris break the tie if Republicans were united against her opposition and vote for herself to ascend to the Supreme Court? So there are a bunch of angles here. There has been a lot of pressure on Stephen Breyer to step down. This would appear to be the only Supreme Court seat that is likely to open for Joe Biden. And it would maintain, like you said, Buck, the 6-3 situation in the voting power in the Supreme Court.

BUCK: Right. There will be less of a battle royale over this just based on the fact that you’re not taking somebody who the left has come… You’re not taking a seat the left has come to view as — let’s be honest about this — built-in for them and reliable as left-wing legislation from the Supreme Court as they can with Sotomayor and for the most part Kagan is a little less than Sotomayor and Breyer up to this point, right?

So they know that this is going to go with somebody who aligns with Breyer who is — I think you could argue, what — the second most liberal, probably. Maybe Sotomayor, obviously Breyer has a longer history of opinions. But certainly, a staunch leftist on the court, no question about it. I think, Clay — if we’re in the prediction game right now — you’re right about Biden.

You’re stating a fact about Biden saying he would nominate a black woman to the Supreme Court. I think what we’re going to see is Democrats find a jurist — I don’t know who is on the short list right now; I’m sure they have one — who is a black female, and I think that that individual is likely to have radical, left-wing politics through the prism of a judge’s bench.

That’s going to be something that’s absolutely essential for them here. I think you will actually see some Republican senators support her. I think you will see this judge get voted through with Republican support. I do not think you will see a united front. There are some members of the Senate on the Republican side who will simply not vote against the first female-black Supreme Court justice.

That’s what I think is gonna end up happening here. I know people right now say, “Wait, but it’s about the credentials?” and, you know, absolutely. But I think that… I think that there are some Republicans… I mean, guys, does any really think Mitt Romney…? Start to look at some of the folks involved here. Who’s Ben Sasse, who’s Mitt Romney gonna be voting for in this process?

CLAY: I will say this. This is me putting my lawyer hat on. Supreme Court nominations were nowhere near the political show for almost the entirety of our nation’s history. In other words, the presumption of any if you are the president and your party controls the Senate, you should get the opportunity to put somebody on the Supreme Court that you choose, presuming that they’re qualified, right? We’ve had issues before where people have been nominated. Remember George W. Bush tried to put Harriet Miers on the Supreme Court?

BUCK: Not good. The right, to be fair — remember, the right — turned on him on that one.

CLAY: That’s right. That’s to be the standard, right? You want to look…? There are all different sorts people who can agree or disagree with you. Every opinion that Justice Clay Travis would issue would be different than every opinion that Justice Sotomayor would put out, right? It doesn’t mean, however, that because those opinions are different, someone is not qualified to be on the Supreme Court.

So I don’t know that… When you know already that the votes are there, clearly every Democrat’s gonna support it. I don’t know. It feels very much to me like a charade to make a big deal of opposing someone, assuming that they are qualified. So much like what happened with Amy Coney Barrett… That was one of those situations, Buck, where she was replacing Ruth Bader Ginsburg, so you were flipping the power dynamic in a large extent, and yet Amy Coney Barrett was so eminently qualified.

I thought the Trump administration and McConnell and everybody else did such a phenomenal job of rolling her out, there was a terror on the Democratic side really to attack her aggressively because she was a suburban mom, because she was eminently qualified. And she kind of coasted, even though we were in the middle of a divisive presidential election. I feel like if Biden puts forward — and I’m not an expert in all the possible nominees here. I feel like if Biden puts forward a nominee who is within the scope of reasonableness, I don’t think there’s much of a battle here. You already know what the end result is.

BUCK: I think we’re almost assured there will not be a battle over this. Republicans don’t have the desire nor really much of the ability. I also do believe — mark my words on this — you’ll get a few Republicans who will be happy to vote for this nominee, assuming this is a jurist who fits the established Biden criteria for diversity and inclusion, but also from a legal background. But in terms of Amy Coney Barrett, they just couldn’t have a bunch of people show up who said, “Amy Coney Barrett sexually assaulted me 30 years ago.” That wasn’t gonna work, right?

CLAY: (laughing) That’s certainly true.

BUCK: I don’t think that they learned a lesson in terms of, “Oh, now they’re gonna be less disgusting after Kavanaugh.” They just couldn’t run the same playbook. They started to try a little bit on some of the abortion stuff with Amy Coney Barrett, but it didn’t have the same resonance.

CLAY: They tried to say… I think she’s adopted a couple of minority children and there was a trotted out “Oh, that’s racist.”

BUCK: They were temporarily anti-adoption on the left because of Amy Coney which is disgusting, but these people are lunatics.

CLAY: Yes. They realized that was blowing back on them and they knew that they needed suburban women in order to have a chance to run against Trump and so they ran in the opposite direction. But here’s the bigger takeaway, Buck, as we go to break. What’s likely to happen is for two years… If the Republicans take back the Senate, there’s not going to be anybody confirmed to the Supreme Court.

So if there were another vacancy after November of the ’22, there wouldn’t be the votes in order to get there. That’s likely to be decided in ’24, much like what happened with Scalia in ’16. If somebody dies or somebody has to step down at ’22 — after the midterms, assuming that Republicans have control of the Senate — we could have a two-year vacancy.

BUCK: Breyer’s the one — he’s the guy — that was assumed this was gonna happen just based on age and the political realities around him. So I don’t think… Who else? Thomas, you think?

CLAY: When you get to people who are over 70 years old, health conditions can arise.

BUCK: They may retire?

CLAY: Nobody, I don’t think, saw Scalia dying when he did, and so I just think that’s worth factoring in there. We could have a 2024 election that also is definitively deciding who’s gonna be nominating a Supreme Court justice like we saw in ’16.