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Justice Breyer’s Retirement is a Bad Omen for Democrat’s Midterm Hopes

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One of the ironclad rules in American politics is that the party that controls the White House usually receives an electoral shellacking during the midterm elections. It happened to Clinton, Obama, Trump, and it looks almost certain that Biden will go down the same route as indicated by the Democrat’s abysmal poll numbers, Democratic incumbents retiring, and Justice Breyer’s retirement from the Supreme Court.

The president (and hence the Democratic Party) has been underwater in the polls since the botched and deadly withdrawal of Afghanistan in the summer. The FiveThirtyEight polling average has his approval rating at just 41%, the lowest point since he assumed office last year. To put these numbers into perspective, Trump hovered around 40% approval when the GOP lost the House in the 2018 midterms, and Obama never polled below 44% when the Democrats got destroyed in the 2010 legislative elections.

Polls are not the only ones forecasting a terrible fate for Democrats later this year, as the recent wave of Democrat retirements and the breaking news that Justice Stephen Breyer is retiring from the bench are clear signs that people in the halls of power of DC are also bracing themselves for a Democratic rout in November.

President Biden’s approval ratings are at an all-time low (Image:EFE)

Breyer’s retirement and Democratic retirements only confirm fears of a GOP takeover in November

There have been tangible signs that Democrats are preparing themselves for a GOP landslide this year. According to Axios, there are 21 incumbent Democrats retiring in 2022, while another 8 are currently seeking other offices. Incumbent retirements have been long viewed as a troubling sign for the party that wants to control the majority in Congress, as open-seat races are more unpredictable than those where the incumbent is running for reelection.

The most obvious sign that Democrats are increasingly anxious over the fate of their slim control of both houses of Congress is the breaking report that Justice Stephen Breyer is finally retiring from the Supreme Court after almost thirty years of service. Breyer was one of the most reliable justices on the Liberal side of the bench, and liberal activists had spent the last year trying to convince him to retire for Biden to appoint another liberal justice while Democrats still had control over the Senate. Since there is no filibuster for judicial nominees, Democrats could get Biden’s nominee confirmed if they managed to get their 50 senators on the same page.

Since Supreme Court nominations have become an extremely contentious issue in American politics, Breyer’s retirement might showcase that the Justice will not risk his seat to be decided by a Republican-led Senate, who could either force Biden to choose a more moderate nominee for the Court or even block the vote of any presidential nominee until a new election is held. Some of the factors that probably weighed in Breyer’s decision to retire were the controversial nomination processes of 2016 and 2020, which eventually lead to Trump nominating two conservative justices in the court.

breyer's-retirement-scotus
Republicans nominated and confirmed three Justices while Trump was President (Image: SCOTUS)

Back in 2016, after the death of Conservative Justice Anthony Scalia, the Republican majority in the Senate blocked Merrick Garland, Obama’s nominee to the Court, nomination. Senator Mitch McConnell (R-KY) only restarted the process after Donald Trump had assumed office in 2017, nominating Neil Gorsuch, who got confirmed to the Senate in a party-line vote. In 2020 the tables were reversed, Liberal Justice Ruth Bader Ginsburg died in September that year, and the Republican-led Senate confirmed Amy Coney Barrett to the bench. Both nominations altered the ideological composition of the bench, as the “conservative” side held 6 seats compared to the 3 seats of the “liberal” wing.

If Breyer had retired or died after the midterm elections, he would be risking that the Biden nominee to substitute him would either be too moderate to appease the Republicans or be blocked by the GOP until 2024, when the Republicans could ensure a conservative nominee if they win the presidential election.

However, by retiring before the midterm elections, Breyer is giving President Biden the chance to score a relatively easy political win and to ensure the “liberal” wing of the Court retains at least 3 of the Justices. Although it depends on the candidate that Biden wishes to nominate, it does not look like convincing 50 senators to support his nominee would be a Herculean difficult task. Joe Manchin (D-WV) has mostly voted with his party in SCOTUS nominations and Kyrsten Sinema (D-AZ) has voted with Biden in his nominations, additionally, Republican moderates like Susan Collins (R-ME) and Liza Murkowski (R-AK) have also sometimes voted with Democrats in these issues.

By retiring in 2022, Breyer is giving the clearest sign that Democrats are expecting a shellacking in the midterm elections.

Daniel is a Political Science and Economics student from the University of South Florida. He worked as a congressional intern to Rep. Gus Bilirakis (FL-12) from January to May 2020. He also is the head of international analysis at Politiks // Daniel es un estudiante de Cs Políticas y Economía en la Universidad del Sur de la Florida. Trabajo como pasante legislativo para el Representate Gus Bilirakis (FL-12) desde enero hasta mayo del 2020. Daniel también es el jefe de análisis internacional de Politiks.

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