In the days since Justice Stephen Breyer’s plan to retire went public, some Republicans have been putting out the word that they do not plan a big fight over his replacement. But it’s a mistake for them to stand down, especially before President Joe Biden has even announced a nominee.
Their impulse is understandable. Battles over Supreme Court nominations can be bitter and ugly. And this is one Republicans will probably lose. Democrats can probably maintain enough unity to confirm a nominee.
Also, peace-minded Republicans reason, the stakes are low. Breyer’s replacement won’t change the balance of the court. Some Republicans, notably Lindsey Graham, hew to the old-fashioned view that presidents deserve deference on their judicial nominees so long as they demonstrate that they are competent, even-tempered and mainstream.
The norm of deference, which is nowhere in the Constitution, has inevitably and justifiably eroded as judges have assumed a greater and greater policymaking role and the parties have come to disagree sharply about that role.
That’s why past Republican efforts to sue for peace in the judicial wars have come to naught. After bruising fights over Republican nominees to the Supreme Court from 1987 to 1991, Senate Republicans largely voted to confirm Democratic nominees Ruth Bader Ginsburg and Breyer himself. But the next time Republicans had the White House, Democrats launched a series of filibusters against many of their judicial nominees. Each party blames the other for its role in a cycle of escalation and retaliation.