On the menu today: A lot of people are going to try to convince you that the upcoming Supreme Court-nomination fight will be huge, dramatic, and high-stakes. But in the end, retiring justice Stephen Breyer is going to get replaced by a like-minded judge, maintaining the status quo. What makes the upcoming nomination battle stand out is how normal it is, compared to all of the other problems facing the Biden administration. Meanwhile, Breyer’s got to learn who can keep secrets; a whole bunch of donated Covid-19 vaccines aren’t being used; and who really won in Neil Young’s fight with Spotify?
Newsworthy, but Not Particularly Consequential
I know that the reflexive instinct in political coverage is to declare that whatever is happening at this moment is the most dramatic event ever. The upcoming election is always the most important one of our lifetimes, the current president is always the worst ever, the stakes are always the highest ever, and if you don’t make a donation to our campaign now, the Earth will crash into the sun.*
Today’s newsletter is swimming against the tide when it declares that the retirement of Supreme Court justice Stephen Breyer is newsworthy but not particularly consequential in the long term. Breyer is going to get replaced by a like-minded judge, and the ideological balance on the Court is going to remain about the same.
As the editors observe, technically Breyer was one of the moderates on the Court, but he didn’t vote all that differently from Justice Ruth Bader Ginsburg or Justice Sonia Sotomayor:
Conventional, institutionalist liberals tend to be every bit as results-oriented and lockstep-loyal on the bench as hair-on-fire progressives. . . . Breyer’s own career illustrates the limits of what a ‘moderate’ liberal looks like. He was occasionally sensible in business cases and matters of low political salience, and to his credit, he voted to strike down the most coercive aspects of Obamacare’s Medicaid expansion. But that was about it.
Yes, it appears that President Biden is determined to nominate a black woman. This will lead to arguments about whether the nominee is the best person for the job, or the best black woman for the job. As Ilya Shapiro observes, “Because Biden said he’s only considering black women for [the Supreme Court], his nominee will always have an asterisk attached. Fitting that the Court takes up affirmative action next term.” Ironically, Biden’s choice would be better positioned if the president had never made that public pledge.
Meanwhile, assuming Biden does select a black woman, it is a certainty that opponents of the nominee will be accused of racism and sexism. Those who criticize Clarence Thomas or Amy Coney Barrett would adamantly insist that their criticism of those justices is not based upon race or sex, but because they vehemently disagree with the legal philosophy and judicial decisions of those justices. Yet many progressives refuse to believe that the other side assesses justices the same way.
Senate majority leader Chuck Schumer wants to confirm the new justice quickly, on a timeline comparable to the one used for Barrett. Senate Democrats have the right to operate on whatever timetable they like. In the end, barring the revelation of the nominee having some particularly unpopular views, or the discovery of proof of some terrible scandal, the Senate is likely to confirm Biden’s nominee. In the modern era — or at least since Robert Bork — Supreme Court nominees don’t get voted down; if they run into serious trouble, as Harriet Miers did, their nominations are withdrawn.
Biden’s nominee is likely to be confirmed with the support of all Democrats and perhaps a handful of Republicans. Washington, D.C., Circuit Court judge Ketanji Brown Jackson is apparently on Biden’s short list. Last June, she was confirmed, 53–44, with the support of Republicans Lisa Murkowski of Alaska, Susan Collins of Maine, and Lindsey Graham of South Carolina. (Graham voted for Elena Kagan and Sotomayor, too; the South Carolina senator has a consistent record of voting for Supreme Court nominees who he thinks are qualified, regardless of their judicial philosophies.) Ed Whelan has more on Jackson here.
A good old-fashioned nomination battle will feel normal in an otherwise-chaotic era.
It’s not just that the Biden administration has problems; the Biden administration has particularly severe and unusual problems. We appear to be past the peak of the Omicron wave, but the country is still averaging more than 600,000 new cases per day, and hospitalizations for Covid are at or near their peak. The supply-chain crisis is really unusual; Americans aren’t used to seeing empty shelves at their grocery store. The labor shortage is really unusual; Americans are used to seeing too many people and too few jobs, instead of the other way around. The country hasn’t seen inflation like this in 40 years. It hasn’t seen sustained high gas prices like this in a long while. We’re used to foreign-policy tensions overseas, but we’ve watched Vietnam-like images during the withdrawal from Afghanistan, and now there may be a large-scale shooting war in Europe. Focus groups show Americans feeling anxious, frustrated, disappointed, and dispirited.
Now we’re about to see an administration trying to get a Supreme Court nominee confirmed in a closely divided Senate? That’s such an old, familiar scenario, it’s almost reassuring.
The Biden White House might be celebrating this turn of events, but I think Charlie Cooke is astute when he observes that, “Joe Manchin will probably end up voting for President Biden’s pick, but he will have to spend some political capital doing so. That is capital that he will not be able to spend supporting a pared down version of ‘Build Back Better,’ or whatever else Biden can dream up before the midterms.”
Biden may see nominating and confirming a justice as a big win, but at the end of the day, he’s just maintaining the status quo on the Supreme Court.
Washington Is Not a Great Town for Keeping Secrets
After initially reporting that Breyer was upset that news of his retirement had leaked before he was ready to announce it, Fox News’ Shannon Bream clarified that, “I’m told Justice Breyer had firmly decided on his own to retire and that an announcement was due very soon. And while it appears someone jumped the gun on that, better to characterize him as surprised by events today than ‘upset.’”
Yesterday afternoon, a lot of people started mocking the Biden administration, suspecting that they knew and rudely leaked the news, in an effort to force Breyer out on their preferred timetable. But I suspect Breyer had unrealistic expectations about how long his decision could remain a secret.
If you’re a Supreme Court justice, the moment you tell someone, “I’m going to announce my retirement soon,” there’s a risk of it leaking. Maybe a justice can tell his or her immediate family, or particularly trusted old friend. But between his clerks, other justices, and other staffers at the court . . . sooner or later, someone will end up talking to Pete Williams of NBC News, who attributed his report to “people familiar with [Breyer’s] thinking.”
A Perishable Vaccine Sitting in a Box Doesn’t Do Anyone Any Good
Now this is infuriating. You’ve probably heard a lot about “vaccine equity,” and the argument that wealthy Western nations have not done enough to bring Covid-19 vaccines to the rest of the world. The U.S. has shipped out 405 million doses of a Covid-19 vaccine.
But the U.S. can’t control what happens to the vaccines once they arrive . . . and apparently, they’re just sitting in boxes, unused, in a lot of places:
According to research by the international humanitarian organization CARE, 32 low- and middle-income countries have used less than half of the vaccines they’ve received from the Covax program, bilateral donations and other sources. Only 27 percent of received vaccines have been used in Burkina Faso, 37 percent in Ghana and 26 percent in Somalia. Burundi has used only 1 percent of received doses, according to CARE.
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ADDENDUM: You can scoff that Neil Young’s “Get rid of Joe Rogan or remove my music” ultimatum to the streaming service Spotify backfired, because Rogan is still on Spotify and Young isn’t.
Then again, when’s the last time you thought about, or heard anyone talking about, Neil Young?