Neither Manchin nor Sinema has voted against any of Biden’s lower court nominees so far — including Biden’s picks for the federal judiciary who have attracted significant Republican heat.
Manchin in particular has attracted liberal ire for holding up Biden’s Build Back Better spending plan, and both the West Virginia Democrat and Sinema voted against Democrats’ efforts to end the use of the 60-vote filibuster on voting rights legislation. But the filibuster isn’t in play for Supreme Court votes anymore.
In the 50-50 Senate, all Democrats need to do is stay united, with Harris breaking a potential tie in the event no Republicans break ranks.
Voted for judges already on Biden’s shortlist
Manchin and Sinema have already voted in favor of several of the federal judges, when they were up for lower court vacancies, who are now said to be in contention for Breyer’s seat. Biden has vowed to select a Black woman for the role, which would be a historic first for the high court.
In a statement issued by Manchin after news of Breyer’s retirement broke Wednesday, the West Virginian said he takes “very seriously” his “Constitutional responsibility to advise and consent on a nominee to the Supreme Court.”
The late Justice Ruth Bader Ginsburg died on September 18, 2020 — and Barrett was nominated on September 26, 2020. She was confirmed October 26, 2020 — just days before the presidential election.
GOP support?
Based on past votes, it’s worth noting there could be some GOP support for a Biden nominee, although lower court judges don’t get the same level of attention as Supreme Court justices.
Graham, however, has indicated that things may all be about party this time.
“If all Democrats hang together — which I expect they will — they have the power to replace Justice Breyer in 2022 without one Republican vote in support,” Graham said in a statement Wednesday. “Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court.”
CNN’s Lauren Fox and Manu Raju contributed to this report.
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