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  • Writer's pictureMario Nicolais

Stephen Breyer gets caught by the politics of Supreme Court appointments

After decades denying politics play a role on the U.S. Supreme Court, Justice Stephen Breyer’s final act is purely partisan. Haunted by the ghost of Justice Ruth Bader Ginsburg, Breyer timed his retirement to provide Democratic President Joe Biden the opportunity to nominate his successor.

Supreme Court nominations have regularly been surrounded by political enmity. Over the past few decades, that enmity has grown to a caustic war of attrition. No nominee has gained more than 80% approval from the Senate since … Stephen Breyer in 1994.

Republicans generally point to the nominations of Robert Bork and Justice Clarence Thomas as flashpoints. The acrimonious Bork hearings led to his rejection, while Thomas was confirmed by the narrowest of margins after allegations of sexual harassment became public.

In hindsight, those hearings seem civil. Seen through the looking glass, neither would likely receive a hearing in today’s climate. Both men were conservative nominees of a Republican president to a Democratic Senate. Both came just a little over a year before the next presidential election.

After Senate Republicans stalled Merrick Garland for 10 months six years ago, it seems doubtful any president facing an opposition Senate would get their nominee through now. That is why Sen. Mitch McConnell, the architect of Garland’s demise, made an about face to fill Ginsburg’s vacancy with Justice Amy Coney Barrett while President Donald Trump was still in office.

It is the same reason Breyer announced his retirement now.

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