Biden's big break: Will Breyer replacement be enough to turn tide of his presidency?

A look at the frontrunners to succeed Justice Breyer

Shannon Bream provides insight on who could take Breyer’s seat on the Supreme Court after his retirement on ‘ Your World.’

As of Wednesday morning, the political landscape was not good for President Biden. 

His approval numbers were the lowest of his presidency, according to the FiveThirtyEight average. The president’s election bills and his reconciliation spending package are dead in the water. 

Migrants are still surging across the southern border more than a year into his presidency. And inflation is the highest it’s been in decades, with 85% of the American public either very concerned or extremely concerned about the economic issue. That’s not to mention Ukraine, Afghanistan, schools and many other issues plaguing Democrats ahead of the midterms.

But Justice Stephen Breyer handed Biden a badly needed political lifeline early Wednesday afternoon when news broke that he’s planning to retire from the Supreme Court at the end of its current term. 

Supreme Court Justice Stephen Breyer during an interview in his office, in Washington, in August 2021
(Bill O’Leary/The Washington Post via Getty Images)

This means Biden has a chance to follow through on a campaign promise to appoint a Black woman to the court. And it gives the president what looks like an easy win with multiple potential nominees who were easily confirmed to appeals courts last year.

But political boost from the Breyer vacancy may be fleeting. 

“Most voters can walk and chew gum and even play basketball at the same time, so it’s not going to change the subject,” the University of Virginia Center for Politics’ Larry Sabato told Fox News. “I suppose it gives Biden a respite from almost completely negative headlines. But how long will that last?”

Top Senate Democrats say they plan to expeditiously confirm Breyer’s replacement. The Senate can act on a nomination before Breyer steps down. That means his seat on the court might be filled – and the Supreme Court issue out of the news – several months before the November elections.

President Biden speaks during a meeting with private sector CEOs about the economy in the State Dining Room of the White House in Washington, Wednesday, Jan. 26, 2022. 
(AP Photo/Andrew Harnik)

One of Democrats’ biggest concerns in the current political environment is that their base might not show up in November, especially with the state of the reconciliation bill and elections bills. 

But Biden and top Democrats now have the opportunity to rally the progressives over the kind of highly animating social issues the Supreme Court handles. Democratic Senatorial Campaign Committee (DSCC) Chairman Sen. Gary Peters, D-Mich., wasted no time doing so on Wednesday. 

“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,” Peters said. “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.”

Several progressives, including Reps. Cori Bush, D-Mo., Jamaal Bowman, D-N.Y., and Ayanna Pressley, D-Mass., reiterated demands Wednesday that Biden follow through on nominating a Black woman to the bench. 

Judge Ketanji Brown Jackson listens to arguments as local high school students observe a reenactment of a landmark Supreme Court case at U.S. Court of Appeals in Washington. Jackson is a front-runner to replace retiring Supreme Court Justice Stephen Breyer. 
(Bill O’Leary/The Washington Post via Getty Images)

And unlike Biden’s promise to “shut down” COVID-19, there’s an entirely reasonable path for the president to keep his word.

D.C. Circuit Court of Appeals Judge Ketanji Brown Jackson is an early front-runner. The Senate confirmed her 53-44 last June, with all Democrats, joined by three Republicans, voting for her. 

Brian Fallon, the executive director of Demand Justice – a progressive group that led a pressure campaign demanding that Breyer retire – tweeted his approval of Jackson Wednesday. 

There are others whose names would likely satisfy progressives too. But Sabato warned that many Democrats simply don’t care about the Supreme Court the way Republicans do.

Sen. Dick Durbin, D-Ill., speaks during the confirmation hearing for Supreme Court nominee Amy Coney Barrett, before the Senate Judiciary Committee, Wednesday, Oct. 14, 2020, on Capitol Hill in Washington. Durbin, who is now the chairman of the Judiciary Committee, said Wednesday he plans to quickly confirm whoever President Biden nominates to replace retiring Justice Stephen Breyer. 
(AP Photo/Susan Walsh, Pool)

“[Biden will] have something to offer minority voters after the debacle of the voting rights bills… So this will give Democrat leaders at least an argument. Whether it will work, I don’t know,” Sabato said. “Democrats have never been all that interested in the court.” 

He added: “The Democratic base is focused on the whole agenda. And they’re so bitterly disappointed about the voting rights bills and the BBB situation. … They’re upset about these other things that probably will have a longer shelf life than a Supreme Court appointee.”

In another dynamic to watch, Richmond University law professor Carl Tobias told Fox News Republicans may pull their punches during this confirmation process to keep a focus on the issues they feel they have an advantage on. 

“Here you’re replacing a moderate to liberal justice with somebody else who’s gonna be somewhat similar to that, and it’s still 6-3,” Tobias said. “It’s really not something you want to go to the mat on, and I think some Republicans will view it that way. … And if it’s a Black woman you will have all kinds of issues about race that will make people uncomfortable when you don’t need to do that.”

“You’ve got to put up some opposition because your base expects it,” Sabato said of Republicans. “But beyond that, I think they’d rather focus on the pandemic and inflation and fill in the blank. Who knows what else is coming up.”

Fox News’ Shannon Bream and Bill Mears contributed to this report. 

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