Reporter's Notebook: Will Supreme Court confirmation battle for Breyer's replacement live up to the hype?

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White House addresses immigration, crime, potential Supreme Court picks

Fox News White House correspondent Jacqui Heinrich reports on the top stories in Washington.

CAPITOL HILL – Capitol Hill braced for chaos when word leaked last week that Supreme Court Justice Stephen Breyer resigned.

“We’re not looking forward to it,” said one senior congressional security official of the potential logistical headaches. 

After all, this will be the first Supreme Court confirmation in the post 1/6 world.

On one hand, the political din over Supreme Court confirmations is louder than the halftime show at Arrowhead Stadium. One could make the case that Supreme Court confirmations are now toxic. White-hot. Only 115 souls have ever served on the Supreme Court. It’s a lifetime appointment. 

The Supreme Court in Washington at sundown on Nov. 6, 2020. (AP Photo/J. Scott Applewhite, File)

But on the other hand, not all Supreme Court confirmation processes are dramatic. Just a select few.

It’s similar to how we build up Super Bowls.

Will Super Bowl LVI between the Los Angeles Rams and Cincinnati Bengals be one for the ages? The incredible comeback by the New England Patriots over the Atlanta Falcons in 2017 is considered to be the best Super Bowl of all-time. The 2009 matchup between the Pittsburgh Steelers and Arizona Cardinals is in the running, too. The 55-10 shellacking by the San Francisco 49ers over the Denver Broncos in 1990 was a dog.

Supreme Court nomination battles are similar. 

The confirmation of Supreme Court Justice Brett Kavanaugh in September and October 2018 was absolutely bonkers. The hearings themselves were tense. Sniping between senators on the dais. Protesters roaming the Hart Senate Office Building. Demonstrators disrupting the hearing, barking at the nominee from the back of the room. Women lined the overhead sky bridges overlooking the cavernous Hart atrium, decked out in heavy, scarlet cloaks and white bonnets, looking as though they stepped out of “The Handmaid’s Tale.” 

And all of that came before things really spilled off the rails.

After the hearings closed, Christine Blasey Ford leveled allegations of sexual misconduct at Kavanaugh, dating back to high school. The Senate Judiciary Committee re-opened the hearings in a scrunched room inside the Dirksen Senate Office Building. Police locked off entire floors so the public couldn’t get anywhere near the key players. The press and a few aides squished into the cramped hearing room. The only member of the general public who seemed to secure a seat was Alyssa Milano.

Everyone was ready for pandemonium on Capitol Hill when former President Trump nominated Justice Amy Coney Barrett days after Supreme Court Justice Ruth Bader Ginsburg died five weeks before the 2020 election. Democrats obviously didn’t care much for Barrett. But the confirmation hearings were tame – even though Barrett’s confirmation shifted the court far to the right. Still, Barrett didn’t carry some of the same baggage as Kavanaugh.

Supreme Court Justice Ruth Bader Ginsburg takes the court oath from Chief Justice William Rehnquist during a ceremony at the White House on Aug. 10, 1993. Ginsburg’s husband Martin holds the Bible. (AP Photo/Marcy Nighswander, File)

The process was also calmer because virtually no members of the public descended on the hearings since the Senate Office Buildings were closed due to the pandemic. Sure, both sides were energized. But the discord wasn’t there – despite the Senate confirming Barrett days before the 2020 election. 

One thought things would be more testy with Barrett. That’s because Senate Minority Leader Mitch McConnell, R-Ky., then the majority leader, refused to hold a hearing for current Attorney General Merrick Garland when President Obama tapped him for the Supreme Court months before the 2016 presidential election.

Can anyone remember much about the rancor during the confirmations of Justices Neil Gorsuch, Elena Kagan, Sonia Sotomayor, Samuel Alito and John Roberts?

No one else can, either.

The biggest dustup in any of those confirmations stemmed from the fact that Democrats believed that Gorsuch took the place of what should have been an Obama justice, thanks to McConnell’s stall tactic. McConnell detonated “Nuclear Option II” to alter Senate procedure in order to confirm Gorsuch. Otherwise, Democrats likely would have filibustered Gorsuch’s nomination.

The most memorable things from the Kagan and Sotomayor hearings? Sen. Lindsey Graham, R-S.C., asked Kagan what she was doing on Christmas Day, 2009. That’s when Umar Farouk Abdulmutallab tried to bomb a flight out of Detroit. 

“Like all Jews, I was probably at a Chinese restaurant,” replied Kagan, prompting laughter in the hearing room.

Former Sen. Jeff Sessions, R-Ala., grilled Sotomayor at her 2009 confirmation hearing about a comment the justice made years earlier in several speeches. Sotomayor had argued that a “wise, Latina woman” may reach better decisions in legal cases than Caucasian men. Sessions and others criticized Sotomayor for suggesting that one’s “background and experiences” may outweigh the law and precedent. Sotomayor described the line as a “rhetorical flourish that fell flat.”

But few recall much else from Sotomayor’s confirmation hearings.

The confirmation hearings for Ginsburg and Breyer in the mid-1990s weren’t very contentious. But the 1991 confirmation of Justice Clarence Thomas only rivals the bedlam of the Kavanaugh hearings. 

The Judiciary Committee had already closed the hearings and was ready to send Thomas’ nomination to the floor. But that’s when professor Anita Hill lobbed allegations of sexual harassment at Thomas. President Biden – then the Judiciary Committee chairman – re-opened the hearings. All networks carried the hearings live. Even over the weekend. CBS debated whether to stick with the hearings rather than air the baseball playoffs. 

“This is a high-tech lynching,” declared Thomas, characterizing the proceedings as “Kafkaesque.” 

The Senate finally confirmed Thomas, 52-48. It was the narrowest confirmation for any justice since the 1880s.

The tumult of the Thomas and Kavanaugh confirmation processes reveals a stark contrast to the relative calm of most Supreme Court confirmations. There were few fireworks in 1990 when President George H.W. Bush nominated Justice David Souter for the bench. Sure, Souter’s nomination revved up the political machines on both sides of the aisle. Women’s rights groups lashed out at Souter. Republicans doubled down that they needed a conservative. Ironically, Souter seemed to drift to the center if not the left during his time on the bench. But the process wasn’t fractious.

It’s far from clear as to how raucous things may be when President Biden nominates his successor for Breyer. The nominee could face a rocky confirmation process in a 50/50 Senate. Graham has hinted that some Republicans could support Biden’s nominee – depending on whom the president selects. McConnell is already setting up air cover for Republicans to vote no. If President Biden nominates a liberal, many GOPers could oppose the nominee on that basis alone, regardless of qualifications. 

“President Biden was elected on the specific premise to govern the middle, steward our governing institutions and unite a divided country,” said McConnell.

President Joe Biden speaks on the retirement of Supreme Court Justice Stephen Breyer at the White House on Thursday, Jan. 27, 2022.
(Yuri Gripas/Abaca/Bloomberg via Getty Images)

The Kentucky Republican reminded the president the Senate was 50/50. 

“I suggest President Biden bear this in mind as he considers who to nominate to our highest court,” warned McConnell.

The Senate has never required the vice president to break a tie vote to confirm a Supreme Court nominee. In fact, no vice president ever cast a tie-breaking vote to confirm any nominee until 2017. Vice President Pence cast the tie-breaking vote to confirm Betsy DeVos as education secretary.

So how will this confirmation process go? A yawn-fest or the hurly-burly?

Is it a Joe Montana hitting John Taylor in the end zone with 16 seconds left to win the Super Bowl in 1989? Or is this a blowout like the Dallas Cowboys over the Buffalo Bills in 1993?

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Impossible to predict. We never truly know what will emerge from a nominee’s background or what they may say at the hearing.

In short, wild confirmation hearings are actually the exception. It’s hard to believe that the Senate confirmed six justices by voice vote – without an actual roll call – in the 1950s and 1960s. That list includes Chief Justice Earl Warren along with Justices William Brennan and Byron White. 

Certainly don’t expect anything close to that this time around. But even if the confirmation process is contentious, don’t expect bedlam, either.

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