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5 Popular Misconceptions About This Supreme Court Nomination

Just because a lot of people are saying it, doesn't make it true.

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Supreme Court Justice Stephen Breyer Announces His Retirement At The White House

(Photo by Drew Angerer/Getty Images)

Hot takes make the world go round. Or at least the journalism world go round.

While experts and not-so-much experts flood social media and cable news outlets with opinions about the upcoming nomination process, their talking points keep getting recycled and amplified into “conventional wisdom.” Sometimes a hundred monkeys at a hundred typewriters stumble onto a classic. Just as often they parrot arguments despite lacking much in the way of reliability other than constant repetition.

After 48 hours of hot take consumption, here are some points that keep earning thoughtful nods from audiences that should know better.

1. This Won’t Change The 6-3 Conservative Majority, So Republicans Won’t Fight It

Isn’t it pretty to think so?

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The next justice won’t be restoring the Fourteenth Amendment next Term, but Clarence Thomas and Sam Alito are in their 70s, so this pick will end up mattering a few years from now… and for a long time after that.

That’s why the GOP took a page from Justice Ginsburg, declaring that: there will be enough conservative justices when there are nine. “Winning” isn’t the goal, scorching the Earth is (literally in this case).

Even if individual GOP senators aren’t interested throwing down a gauntlet over this seat, constant ideological warfare is very much the stance of the Republican Party’s media auxiliary. How can a Republican senator go back to their constituents — all hopped up on Tucker Carlson — and say “we know we said the Supreme Court is a never-ending Manichaean struggle against the forces of darkness, but we’re up 6-3, so we’re good”? There are dozens of QAnon state legislators itching to have that primary fight.

Susan Collins clinging to power in a largely Democratic state has the flexibility to play it cool, but she’s in very small company. I’m already willing to say one or both of Lindsey Graham and Lisa Murkowski, who voted for Judge Brown Jackson’s nomination just last year, will not vote for her getting this seat.

A perfect segue to…

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2. Judge Ketanji Brown Jackson Already Got Confirmed By This Senate So We Know How Everyone’s Going To Vote

The Senate did confirm Judge Brown Jackson to the D.C. Circuit last year by a 53-44 vote. And Joe Manchin even supported her! Assuming Biden opts to elevate the former Breyer clerk, this is a slam dunk, right?

Probably? But not necessarily.

Putting aside the spelling error — hey, Toobin did it too — nominating someone who recently went through the confirmation process is definitely a plus, but this is going to be a very different process.

Democrats unanimously confirmed Neil Gorsuch to the Tenth Circuit. He did not get the same love in 2017. Of course, by that point he’d rung up a disturbing judicial record and his nomination was tainted by the Senate’s abdication of its constitutional requirement to advise and consent to Merrick Garland’s appointment. More recently, Tim Kaine and Joe Manchin both voted for Amy Coney Barrett’s circuit nomination and against her for the Supreme Court.

During Gorsuch’s nomination I went on a radio show where they asked how anyone who voted for him before could vote against him now and my answer was, “because as activist as circuit judges can get, they’re still cabined by something.” The Supreme Court is a different job. Its members aren’t accountable to anyone but their peers. Republicans could easily cast whichever nominee Biden selects as perfectly competent for some jobs, but “too radical” for the unfettered Supreme Court.

Will a sustained media blitz in West Virginia convince Joe Manchin to flip on Judge Brown Jackson after One America News casts her as the face of Marxism or Critical Race Theory or whatever buzzword they’re flogging this week?

It’s not impossible.

But…

3. Moderates Like Mitt Romney Will Vote For This Pick

The above observation isn’t reversible. Senators who voted to put Brown Jackson on DC Circuit may flip and vote against giving her a promotion, but senators who didn’t think she should serve on the DC Circuit are not going to come around and put her on the Supreme Court.

That means Mitt Romney.

4. There’s No Rush

The midterms aren’t going to matter, right?

Chuck Schumer reportedly wants to get this done on the same timeline the Republicans pursued for ACB. While this is delightfully trollish, the real reason for Schumer’s quick turnaround is the real fear that time is Biden’s only enemy here. But Dianne Feinstein, whose role in the ACB process cemented fears that she’s unable to effectively perform her job, is already itching to draw this nomination out for months.

Who wins this scheduling battle could have big consequences.

The risk in securing Joe Manchin, let alone folks like Susan Collins, Rob Portman, Mitt Romney, is keeping the nomination focused on facts and qualifications. Every day the nominee remains hanging out there is another day of Tucker Carlson whipping up GOP activists in these states to pressure possible yes votes to waver.

While midterms are many months away, Breyer’s decision to delay his announcement until now affords the GOP the opportunity to play potential nominees off each other (“Judge Brown Jackson is too radical… maybe we’d consider Justice Kruger though”). Which is the exact same trap they used when they begged Barack Obama to nominate Merrick Garland and then… never voted on him.

Never trust Lucy with the football, Charlie Brown.

If Feinstein drags out the process and then the administration goes to the wire before having to swap out nominees, the “we should probably wait until the next Senate” argument sounds more plausible. It’s disingenuous, but “sounds” more plausible.

And this is all why Breyer should have announced this months ago.

5. They’ll Put Kamala Harris On The Court And Replace Her On The Ticket With…

No. They won’t.

We’re all dumber for having heard that suggestion.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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