In reality, however, the process will be exactly the same as it has been for other nominations. After a formal news conference at the White House, Jackson will meet in private with key senators. Then, there will likely be a three-day hearing in front of the Senate Judiciary Committee. After what is expected to be a positive committee vote, her nomination will be taken up by the full Senate. A simple majority is all that is needed for her to be confirmed.
What is different this time is that instead of sending a formal note to the president about the confirmation vote, the Senate would simply hold on to the message until Breyer leaves the court.
Given that Breyer, a left-leaning judge nominated by a Democratic president, would be replaced by another left-leaning judge nominated by a Democratic president, the stakes are not particularly high for partisan politics. Further, conservatives have a 6-3 majority on the court. Nothing about this nomination would change that.
For example, one reason why the Amy Coney Barrett nomination was so hard fought was that she was a conservative against abortion rights who replaced Justice Ruth Bader Ginsburg, a reliable abortion rights vote. That is not the situation here.
Still, there are some dynamics to watch that could get very interesting.
Could Republicans hold up the nomination by just walking away?
The unique even party-split in the Senate opens up the possibility of a weird wrinkle.
Since Vice President Harris can be the tie-breaking vote in the Senate, Democrats technically control the Senate and Senate committees, including the Judiciary Committee.
But the situation also means the Judiciary Committee has the exact same number of Republicans and Democrats serving on it. Committee membership by party is proportional to the party make-up of the Senate overall.
Importantly, this does not mean that a partisan split tie vote in the Judiciary Committee can hold up a nomination. This happened to Boston’s Rachael Rollins last year and she still got confirmed to be US Attorney for Massachusetts.
That said, Senate rules say that a majority of committee members must be present for a vote on a nomination. If all Republicans on the committee simply didn’t show up, there may not be a vote.
Yes, this is a real thing. Republicans already did this a few weeks ago in the evenly split Senate Banking Committee. They didn’t show up, so there weren’t a majority of committee members present to vote on Federal Reserve nominations. Committee chair Sherrod Brown, an Ohio Democrat, admitted that one Republican needed to be present so there would be a majority and the vote would count (even if that Republican voted against the nominee.)
It’s not just Republicans. Democrats boycotted the Senate Judiciary Committee vote on Barrett, but Republicans had a majority of the committee and her vote counted.
Constitutional law experts say that there are things Democrats can do to overcome this, but it is unclear what those would be exactly. It appears that Senate Judiciary chair Dick Durbin, a Democrat, has tried to head this off by having a close relationship with the Republican leader on the committee, Senator Chuck Grassley.
Will there be any Republican votes?
Last year, Jackson was confirmed to a federal appeals court with the votes of three Republican senators: South Carolina’s Lindsey Graham, Alaska’s Lisa Murkowski, and Maine’s Susan Collins.
This time around it appears that Graham is likely a no vote. Murkowski is up for reelection this year and facing a serious primary challenge, which might make a yes vote for a Democratic Supreme Court nominee a bit trickier. This leaves Collins, who like Murkowski, says she is for abortion rights. Collins isn’t up for reelection until 2026.
In a statement Friday, Collins didn’t reveal much about her thinking.
“I will conduct a thorough vetting of Judge Jackson’s nomination and look forward to her public hearing before the Senate Judiciary Committee and to meeting with her in my office,” Collins said.
How will Republicans eyeing 2024 try to make a name for themselves?
All 50 Democrats seem to be inclined to support Jackson. Yes, this includes Joe Manchin and Kyrsten Sinema, who don’t always vote for Democratic priorities.
So any interesting opposition will come from three people all eyeing 2024. Senators Tom Cotton and Ted Cruz both serve on the Judiciary Committee and will get their moment in the sun to question the nominee the same way presidential candidates Senator Amy Klobuchar and then-Senator Kamala Harris did for Donald Trump’s court nominees. After all, a potential national candidate is incentivized to create fodder for media attention and e-mail fund-raising pitches.
There is also Trump himself, who will likely want to weigh in, even though he doesn’t have a vote.
Of course, there is a political danger in attacking a historic nomination if they do it in the wrong way.
George is Digismak’s reported cum editor with 13 years of experience in Journalism