While replacing retiring Justice Stephen Breyer won’t change the balance on the U.S. Supreme Court, it could impact the balance in the U.S. Senate. The question is, will a fight to fill a liberal judge’s vacancy with a Biden appointee help or hurt Democrats like Sen. Maggie Hassan?
Hassan’s uphill race got a bit steeper Wednesday even before news of Breyer’s retirement broke. A new Granite State Poll from the UNH Survey Center found President Joe Biden’s approval rating has plunged to a dismal 39 percent approve/60 percent disapprove among Granite State voters. In a midterm election, a presidential approval rating below 50 percent is bad news.
Below 40 percent? Think “Watergate.”
Now the campaign season has been thrown a curve. According to published reports, Breyer will serve out the rest of this term, which means the seat won’t technically be vacant until July. A typical Supreme Court nomination takes around 10 weeks, which would put a confirmation vote around the same time as the GOP U.S. Senate primary on September 13.
Senate Majority Leader Chuck Schumer is reportedly considering starting the process while Breyer is still on the bench, but it is almost certain to be a top story over the summer.
Is that good news or bad news for Hassan, whose head-to-head number is stuck around 43 percent?
From the big-picture standpoint, Supreme Court fights are better for Republicans. Their voters care about the issue more. Plus, listening to Democrats praising the progressive views of Biden’s nominee may remind them why they need to show up at the polls in November.
At the same time, replacing a liberal with another liberal is hardly a red-meat political moment.
“A Supreme Court nomination gives President Biden a chance to do something that he has been very good at so far: nominating judges and getting them confirmed,” says UNH political science professor Dante Scala. “Provided that the candidate is well-vetted and broadly acceptable to Democrats, this should be a straightforward win that will cheer up Biden’s base and perhaps chip away at the enthusiasm gap that exists nationally right now.
“All this could help Hassan, at least in a small way,” Scala added.
Or, Biden could nominate someone who is from the progressive wing of the party, which would please his base but power up the GOP.
“The Supreme Court nomination represents a substantial risk for the president,” according to Greg Moore, a veteran hand in New Hampshire politics and the state’s executive director of Americans For Prosperity. “Nominating an avowed progressive will fire up the conservative base even more, while nominating a moderate would dispirit a liberal base that is already smarting from losing the elections bill and watching the tax and spend bill fall into the ditch.
“Midterms are all about whose base is energized and this could go badly. For Sen. Hassan, this represents a conundrum – voting for a progressive is only going to turn off more moderates for her. I’m sure she’s not excited about having to support someone who would keep the far-left happy.”
After the Breyer news broke, Hassan released a statement praising his “impressive legacy on the Supreme Court, including key votes to uphold a woman’s right to choose her own destiny and ensure that the Affordable Care Act remains the law of the land.”
She added: “When the time comes, I will review President Biden’s next Supreme Court nominee as part of the Senate’s confirmation process.”
But few political observers doubt Hassan is anything but a “yes” vote, regardless of who Biden picks. (The White House confirmed Wednesday he intends to uphold his campaign pledge to nominate a Black woman.)
That’s certainly the view of state Sen. Chuck Morse (R-Salem), one of three candidates in the GOP primary.
“It’s not a shock to anyone in New Hampshire she will be a rubber stamp for the Biden agenda. Sen. Hassan has been a consistent vote for the DC Democrats since she went to Washington,” Morse said.
Retired Gen. Don Bolduc, another GOP contender, echoed those views, tweeting: “Rest assured Senator Hassan will rubberstamp Joe Biden’s extremely liberal SCOTUS pick.”
“Justice Breyer’s announcement that he will step down from the SCOTUS is a fresh reminder of what’s at stake in the 2022 election,” said Republican candidate Kevin Smith. “New Hampshire deserves a senator who will hold a hard line on federal judges and always defend the constitution. Maggie hasn’t – I will.”
There’s another interesting wrinkle from a summer Supreme Court nominee fight. Many court watchers believe Roe v. Wade is going to be significantly rolled back, if not overturned entirely, by the court. That is guaranteed to set off a political explosion, likely sometime near the end of the court’s term.
Hassan supporters are practically salivating over the prospect of non-stop abortion talk in the weeks leading up to the election. They believe it is a winning issue — one of the very few in the current environment. But as Charles C. W. Cooke points out at National Review, the free-floating rage that would have been unleashed is now going to be channeled into the fight to keep a 50-50 Senate united to fill Breyer’s seat.
“The primary purpose of Supreme Court hearings is to convince the public — and the Senate — that the nominee in question is a respectable, qualified, disinterested professional who deserves an appointment for life. One cannot do that at the same time as one is advertising a naked power grab,” Cooke wrote.
The GOP believes a Supreme Court battle is a winner in New Hampshire. According to Axios, this is one of the states where Republicans plan to tie Democrats like Hassan to problematic positions highlighted by a debate over the nominee.
“Gun control, abortion, education policy and COVID-19 mitigation measures are potential issues to hit,” it reports.
And, it should be noted, Breyer has not been talking about retiring. Reports from the Supreme Court beat are that he is having a delightful time as the senior liberal on the bench, a position he waited many years to finally achieve. It is unlikely he would be retiring in 2022 if he felt confident at least 50 Democrats would be in the Senate to fill a vacancy in 2023.
Apparently, he doesn’t.
