Breyer’s retirement gives Senate Democrats a chance to show their base they can deliver

By Dan Merica, Eric Bradner and Gregory Krieg, CNN

Supreme Court Justice Stephen Breyer’s decision to retire arrived like a shot of adrenaline to beleaguered Democrats searching for a way to reanimate a frustrated base that they need to show up in November if they’re to have a chance at keeping control of the Senate.

It’s unclear how impactful the excitement around President Joe Biden’s pick will be in November — with both Democratic and Republican operatives telling CNN that they believe other issues, ranging from Covid-19 to the economy to education, will be more top of mind for voters. But the President’s vow to nominate a Black woman replacement has the potential to reinvigorate his standing with core Democratic constituencies demoralized by lack of action on a host of issues he pledged to tackle during his 2020 campaign. This is especially true for Black voters — the backbone of Biden’s Democratic primary win.

Stefanie Brown James, co-founder of The Collective PAC, a political organization working to elect more Black candidates, said on Wednesday that she has already felt the “energizing” impact of the news, calling it “a welcomed jolt of energy.”

“It will make an impact on the midterms. People do want to know and feel sure that Joe Biden is a man of his word,” she said, adding later, “With so much stuff feeling ‘anti’ these days — anti-women, anti-voting — this feels like it is a pro-something we could gain.”

Breyer had been under pressure from progressive groups to step down before the end of the year, with Democrats at risk of losing their slim Senate majority — and with it, the ability to confirm his successor –– in November’s midterm elections. The 83-year-old’s refusal to reveal his plans had become a point of increasing frustration among many leading party officials, who worried a delay into 2022 or beyond would effectively give Republicans a veto on a future Biden nominee.

But with Breyer now planning to leave, Democrats up and down the ballot have been gifted a new fundraising issue and, should Biden’s nominee be swiftly confirmed, a significant political accomplishment to cheer after failed efforts to pass the President’s social spending program and voting rights legislation. And deliverance on a historic promise could resonate with Democratic voters, particularly in states like Georgia, a crucial Senate midterm battleground, where Black voters last year helped deliver the very Senate majority that will likely allow Democrats to confirm Biden’s pick this year.

Brown James said Biden living up to his historic pledge is particularly “important in the midst of there not being a lot of action, outside of Covid” coming from the Democratic-controlled government in Washington.

High-profile Black women running for office have echoed this in response to the news, too.

Cheri Beasley, the first Black woman to be North Carolina Supreme Court chief justice and a candidate for US Senate in 2022, said the opening “presents an opportunity for Biden to make good on his promise and nominate one of many talented, qualified African American women jurists.”

And with the court poised to rule on high-profile issues like abortion this summer while Breyer is still on the bench, Democrats are hoping that the vacancy — even if the conservative tilt of the court remains — will remind voters why control of the Senate is so important.

“This vacancy reinforces the stakes of this year’s election and why we must defend and expand our Democratic Senate majority with the power to confirm Supreme Court justices,” Michigan Sen. Gary Peters, the Democratic Senatorial Campaign Committee chair, said in a statement shortly after Breyer’s plans became public. “Protecting Roe v. Wade, coverage for pre-existing conditions, workers’ rights and so many other issues central to the lives of every American are all on the line.”

‘In everybody’s interest for things to go relatively smoothly’

In the hours after news of Breyer’s retirement broke, former President Donald Trump and the GOP’s campaign arms did little to signal an appetite for a large, drawn-out confirmation battle.

Trump’s political organization sent a standard-fare email to supporters warning that “Joe Biden will appoint a LIBERAL ACTIVIST” and seeking donations.

Republican National Committee Chairwoman Ronna McDaniel tweeted, “We know Biden will appoint a far-left, activist judge who won’t protect your freedoms.”

But most Republican campaign social media accounts, though getting in their jabs, remained focused on attacking Biden over the economy.

Republican Senate candidates offered previews of how they’d use the court confirmation process to attack Democratic incumbents — even though it’s not yet clear whether Biden’s eventual Supreme Court nominee will provide the GOP with a politically useful cudgel.

The early back-and-forth from Nevada, home to one of the toughest Senate contests of the year, offered little more than the usual boilerplate.

Democratic Sen. Catherine Cortez Masto, who’s in one of the most competitive reelection races in the country, said she would “carefully consider the record” of the nominee. But Nevada Senate GOP candidate Adam Laxalt, the former state attorney general, said he suspected Cortez Masto would be a “rubber stamp” for whoever it is and that her “predictably partisan approach” made her “entirely unqualified” for Senate.

Inside the Beltway, Republicans have broadly acknowledged that the court opening gives Democrats something to rally around after a divisive and, to date, fruitless few months chasing votes in the Senate for Biden’s agenda.

But they said the nomination fight won’t be a driving factor in November’s midterm elections — particularly compared to looming Supreme Court rulings on issues like abortion rights.

“It’s a timely morale boost for a White House and a party that desperately needs something to cheer about,” said Republican strategist Liam Donovan. “But who is on the Supreme Court will have far less of an impact on the midterms than how the court stands to rule on key cases during their next term.”

The real potential upside for Democrats, Donovan added, was the opening now for Biden’s overall standing to improve — that if a Supreme Court nomination battle and confirmation can bring those who have wavered on the party back into its fold “and get his (approval) numbers out of the low 40s, that’s a big deal.”

“The flip side of this is that there’s not much value for (Republicans) in dragging this out or getting into a personal or divisive confirmation battle, so it’s in everybody’s interest for things to go relatively smoothly,” he said.

‘Elections have consequences’

But if it’s a battle Democrats are counting on, they might find themselves alone in the ring.

The national political environment and historic norms favor Republicans headed into the election season, and it is unclear for now whether Republicans see an obvious upside in quarrelling over a nominee they lack the votes to block, on a court controlled by conservatives no matter the outcome.

“The question is, do you make this an ideological fight when all of the midterm conditions are already heavily in your favor, and I would say you should not,” said Rory Cooper, a partner at Purple Strategies who previously worked for several Republicans. “Voters in November are going to be focusing on whether their paycheck is going as far as they think it should, whether their streets and neighbors are safe, whether their schools are open and performing well and whether our Covid response makes sense to them.”

Cooper said that does not mean Republicans won’t talk about the issue. “There is a difference between letting a handful of senators go on their evening cable shows and blast the President’s nominee and it being the central focus of the party,” he said. But he hopes the Republican focus will remain on the midterms, not a nomination fight that Biden is likely to win.

Many Republicans have yet to comment on Breyer’s impending departure, but South Carolina Sen. Lindsey Graham’s statement acknowledged that this nomination may be less contentious than those during the Trump era.

“Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court,” said Graham, who voted to confirm Judge Ketanji Brown Jackson, one of Biden’s top contenders, to the DC-based appellate court in 2021.

Whether or not Biden’s nominee will get any Republican support, Democrats are eager to get the pick confirmed as quickly as possible. The effort may be reminiscent of how it took then-President Donald Trump one month to nominate and confirm Amy Coney Barrett to fill the vacancy left by the death of Ruth Bader Ginsburg.

“President Biden’s nominee will receive a prompt hearing in the Senate Judiciary Committee,” said Senate Majority Leader Chuck Schumer. “And will be considered and confirmed by the full United States Senate with all deliberate speed.”

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Alex Rogers contributed to this story.