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Next ‘Supreme’ Fight: An Early Cheat Sheet

GLENN HARLAN REYNOLDS Glenn Harlan Reynolds is a professor of law at the University of Tennessee and founder of the InstaPundit.com blog.

WELL, Justice Stephen Breyer announced his retirement — or, to be more accurate, someone leaked that he was going to announce his retirement in a few months. That someone was probably at the White House, which has been desperate for a storyline that would distract from the failing economy and our disastrous foreign-policy failure in Ukraine, which came after our disastrous foreign-policy failures with Afghanistan and China.

Breyer is reportedly miffed about the leak but not so miffed that he’ll scrub his plans. His retirement is just another example, like the ongoing wave of Democratic congressional retirements, that Democrats expect to lose big in the midterms. So if he wants to be replaced by someone sufficiently leftist, he’d better see his successor confirmed while the Democrats still (sort of) control the Senate.

That means we’re in for another round of confirmation theater. As soon as the Breyer news broke, Jesse Kelly, channeling the Democrats’ fake scandal aimed at Brett Kavanaugh’s confirmation, announced: “Whoever Biden wants to replace him raped me in high school. I don’t remember where. Don’t ask me to come back to DC. I’m afraid to fly.”

I suspect Republicans won’t be as over the top as Democrats were then, with mobs of angry feminists cornering senators in elevators. But the GOP must decide how to respond. And Republicans are already debating the question.

One school of thought considers the Breyer replacement no big deal. A liberal on the court is leaving, to be replaced by another liberal. Republicans should go through the motions of opposition but save their powder for another day. The important thing is not to do anything that might alienate independents and

We’re in for another round of theater.’ confirmation

moderates in the midterms.

Another school of thought says the opposite: Democrats went over the top with the last few Republican appointments. The only way to teach them a lesson is to give them a taste of their own medicine. Under this approach, Republicans should dig up every bit of dirt they can on the nominee and make as big a stink as they can, à la the Democrats and Kavanaugh, as payback.

Neither approach, though, fits the circumstances. Face it, there’s a double standard, and Republicans get called “insurrectionists” for doing things that are called “mostly peaceful protests” when Democrats do them.

Complicating matters more is that President Biden promised in campaigning to name a black woman to the Supreme Court. This is a problem for both parties.

For the GOP, the optics of doing a full-Kavanaugh attack on a black woman are poor. You just can’t get away with the kind of stuff you can get away with when it’s aimed at a white male Republican.

For Democrats, the issue is that they don’t have a deep bench. There’s already been speculation that Biden might nominate Vice President Kamala Harris.

This would solve many problems, since Biden is obviously not up to his job, but no one wants to see Harris replace him. But while being a former California attorney general is a decent résumé line, her work in that job is likely to alienate even many Democrats if it gets the kind of attention it would get in a confirmation hearing. Harris was notoriously hard on criminal defendants and notoriously friendly to police and prosecutors who violated those defendants’ civil rights. That plays badly post-George Floyd.

In addition, Harris isn’t up to it. She’s performed poorly in the undemanding post of vice president.

There are other candidates, of course, but not so many that the GOP hasn’t been able to look into their backgrounds thoroughly already.

At any rate, there are only two people who really matter in this fight: maverick Dem Sens. Joe Manchin and Kyrsten Sinema. If the Democrats can’t hold them, everything is up for grabs. That means both Democrats and Republicans will be spending much energy trying to craft an approach that will please Manchin and Sinema. It should be a fun summer for those two, at least.

Or the Democrats could think out of the box and nominate — Donald Trump! Think about it: He’s liberal on a lot of social issues. He’s old enough that he won’t stay on the court that long. Sure, he’s not a lawyer, but the Constitution doesn’t require him to be. And this way, they won’t have to worry about him running for president!

OK, that won’t happen. But it would be a lot more entertaining than what will.

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2022-01-28T08:00:00.0000000Z

2022-01-28T08:00:00.0000000Z

https://nypost.pressreader.com/article/281956021175104

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