Biden Eyes GOP Senators Voting Again for Brown, Despite Past Democratic Flips

The fight to place Circuit Judge Ketanji Brown Jackson on the Supreme Court will center on a campaign by Democrats to hold the three Republicans who voted her a spot on the appellate bench just eight months ago to say ‘yea’ when it comes to confirming her to the high court. In picking Judge Jackson, President Biden was no doubt attracted to the fact that among Republicans, three Senators — Collins, Graham, and Murkowski — cast a vote for the jurist just eight months ago, when she was confirmed as a federal appellate judge by a 53-44 vote.However, the past might be prologue in ways that are less than helpful for President Biden. Even as he appears set to rely on the troika of GOP senators past votes, Republicans are armed with their own archival ammunition of Democratic flip flops.Republicans will point out that both Justices Kavanaugh and Barrett were only confirmed after shedding earlier Democratic votes, setting up a showdown over the future of the court that will be deeply informed by votes cast in the past.Mr. Graham is signaling that he will not be bound by his earlier vote, commenting that Mrs. Jackson’s nomination is “a sign that the radical left has won” and that “The Harvard-Yale train to the Supreme Court continues to run unabated.” He predicted a “respectful but interesting hearing.” Mr. Graham had supported another contender for the nomination, federal district court judge Michelle Childs, and blamed “attacks by the Left” for her failing to get the nod. Mrs. Collins was far more circumspect on the nomination, calling Judge Jackson “an experienced federal judge with impressive academic and legal credentials” and promising a “thorough vetting.” Mrs. Murkowski is also distancing herself from her previous vote, telling the Washington Post that a Supreme Court vote “commands its own evaluation, separate and above everything that we have considered to date.” Judge Jackson has more personal ties to Republicans as well, as she is related by marriage to Paul Ryan, the onetime speaker of the House of Representatives. He congratulated her on the nomination despite the fact that “their politics may differ.”Each Senator matters. Judge Jackson will appear before a 50-50 Senate, and as the Sun has reported, the prospect of a Vice Presidential tie-breaking vote is constitutional terra incognita. With no real wiggle room, any number of GOP votes would ensure that Mr. Biden secures a liberal seat on the high court for a generation. This calculus is especially pressing because of the absence of Senator Luján, Democrat of New Mexico, who has been absent from the upper chamber after suffering a stroke. The timetable for his return is uncertain, but Mr. Luján recently vowed to be back for a Supreme Court confirmation hearing. If any of Mr. Graham, Mrs. Murkowski, or Mrs. Collins switch their support of Judge Jackson to opposition, accusations of hypocrisy will likely be met with reminders of mirror image flips on the Democratic side of the aisle in recent years. When Justice Amy Coney Barrett was nominated to the Court of Appeals for the Seventh Circuit in 2017, three Democrats — Senators Donnelly, Kaine, and Manchin — voted to confirm her in a 55-43 tally. None did for a Supreme Court spot, although Mr. Donnelly had been replaced by a Republican, Senator Braun, by the time that vote transpired. Justice Barrett was eventually confirmed by a 52-48 vote to replace Justice Ruth Bader Ginsburg in 2020, a presidential election year. Mr. Kaine, explaining his vote against Justice Barrett, remarked that he struggled “to recall ever before witnessing such disdain for precedent, such disrespect for the legacy of an American giant, such disregard for the will of the voters.”A similar flexibility was on display in the journey of Justice Kavanaugh to the Supreme Court. His confirmation to the D.C. Circuit, by a 53-44 vote, was likewise supported by three Democrats — Senators Carper, Landrieu, and Nelson.Although only Mr. Carper was still serving in the Senate when Justice Kavanaugh came up for a Supreme Court vote, a solitary Democrat, Mr. Manchin, voted in favor of the future justice. That tally was 50-48.The confirmation of Supreme Court justices, once seen as a redoubt of bipartisanship, has become in recent years the site of mistrust and rancor. The nomination as an associate justice of Attorney General Garland and the confirmations of Justices Kavanaugh and Barrett all became the occasion for high stakes rhetoric, parliamentary maneuvering, and mutual recrimination. In that context, Mr. Biden, no greenhorn to Supreme Court confirmation battles, might well hesitate to rely on past votes as guarantees of future confirmation. When it comes to the high court, it is a whole new ballgame.

Biden Eyes GOP Senators Voting Again for Brown, Despite Past Democratic Flips

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