Solomon: There's 1 Way Biden Can Avoid Fumbling SCOTUS Pick, But Will He Do It?


On Wednesday, it was announced that Justice Stephen Breyer had finally made the decision to retire from the Supreme Court at the end of the current term.

This timing is for practical political reasons, a clear strategic move to allow President Joe Biden to replace Breyer with a judge of similar ideology before the midterm elections in November.

The reason it is important to replace Breyer well before November is the predicted red wave. The math here is simple. To confirm a new justice to the Supreme Court, you need 51 votes in the Senate. Right now the Senate is split 50-50, with Vice President Kamala Harris able to cast the deciding vote in a tie.

Some Democrats may be relatively confident going into the nomination process for the next justice, but they are failing to read the room. The room in question is the Senate, where to achieve that 50-50 split to set up the tie-breaking vote is anything but a given.

Democratic Sen. Kyrsten Sinema is currently polling at approximately 7 percent in her home state of Arizona. While she is not up for re-election until 2024, the chances of her being re-elected as a Democrat, particularly as more of the country paints itself red over the next two years, are not just slim but close to absolute zero. In fact, a poll this week showed that Sinema is far more popular among Arizona Republicans.

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What better way for Sinema to announce a walk across the aisle to the GOP than by being the vote that denies Biden and the Democrats their victory? She could couch this very easily by saying that the nominee doesn’t reflect the views of her constituents and belongs to a wing of the Democratic Party that is far too extreme and liberal. That message will resonate with new voters for her, which is the only kind of voter that gives her a chance to remain in the Senate.

So whom will Biden choose to replace Breyer? He promised during his campaign that he would select an African-American woman if a vacancy came up. The top contenders in that group are Circuit Court Judge Ketanji Brown Jackson and California Supreme Court Justice Leondra Kruger.

Would either of those candidates find the votes to be confirmed? Jackson was approved as a federal judge a mere six months ago. While the vote was 53-44 (with both Sinema and Sen. Joe Manchin voting in favor), the Supreme Court boasts the highest stakes in the land.

Do you think Biden will nominate a radical leftist to the Supreme Court?

What Biden really needs to do if he expects to have a justice confirmed before the midterms is to pick a right-leaning liberal. His choice needs to be as close to the philosophical center as humanly possible.

While Breyer has been described many times in the past as “moderately liberal,” that probably won’t be enough to get this next justice over the hurdle. Neither Jackson nor Kruger could be described as significantly to the right of Breyer, so if that’s where Biden is intending on laying his chips, he needs to hope that the wheel of fortune is going to be generous to him.

This is not a Supreme Court nomination the Democrats can afford to fumble.

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A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the chief legal analyst for Esquire Digital and 24-7 Abogados. He has taught entrepreneurship at McGill University and the University of Pennsylvania and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Solomon has been featured in Forbes, CBS News, CNBC, USA Today, ESPN, TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, the Independent, Fortune China, Yahoo, ABA Journal,, The Boston Globe, NewsBreak and many other leading publications.