Breyer’s Departure Has Political Risks, Opportunities for Democrats

Confirmation of the next justice would require the support of at least 50 senators in the evenly split chamber, with Vice President

Kamala Harris

poised to cast a tie-breaking vote—meaning Democrats could approve the nominee with no Republican help, as long as they remain united. High-court nominations have become increasingly contentious in recent years, with all three of Republican former President

Donald Trump’s

picks being confirmed by slim margins with little or no Democratic support.

Justice Breyer’s expected announcement, which has been sought by liberal activists, could motivate core Democratic voters after Mr. Biden has suffered from setbacks to his legislative agenda in Congress and public fatigue from the coronavirus pandemic.

It could also energize conservative voters if GOP senators are able to cast Mr. Biden’s nominee as too far to the left on hot-button social issues. Within hours of Wednesday’s news, Mr. Trump’s political action committee sent a fundraising email warning that Mr. Biden would “appoint a LIBERAL ACTIVIST” to the court.

Mr. Biden’s weakened public approval ratings have raised concerns about the party’s ability to maintain its narrow congressional majorities in the midterms. This month, a voting-access bill championed by many Black lawmakers was blocked in the Senate.

“What it gives us is the opportunity for the American people, as they proceed to the ballot box, to know which party stands with them and is aligned with their values,” said

Laphonza Butler,

president of Emily’s List, an organization that seeks to elect Democratic women who support abortion rights.

Marjorie Dannenfelser,

president of the

Susan B. Anthony

List, which opposes abortion rights, said the vacancy raised the stakes “in the fight to secure legal protections for unborn children and return the issue back to the people to decide through their elected representatives, not unelected judges.”

Senate Majority Leader

Chuck Schumer

(D., N.Y.) said the president’s nominee would “receive a prompt hearing in the Senate Judiciary Committee, and will be considered and confirmed by the full United States Senate with all deliberate speed.”

A source familiar with Mr. Schumer’s thinking said he hopes to move the confirmation of Mr. Breyer’s replacement at roughly the same pace as Justice

Amy Coney Barrett’s

in 2020. She was announced by Mr. Trump as his nominee on Sept. 26 and confirmed on Oct. 26.

Mr. Biden and White House officials declined to comment on the vacancy or the timing of a nomination announcement. Many recent Supreme Court vacancies have been announced at the end of the court’s term in June, followed by summertime hearings.

White House press secretary

Jen Psaki,

asked if Mr. Biden would honor his pledge to choose a Black woman for any vacancy, said the president “has stated and reiterated his commitment to nominating a Black woman to the Supreme Court and certainly stands by that.”

While the White House hasn’t yet commented on any potential successors, the list of possible nominees would likely encompass several prominent Black jurists, including Judge

Ketanji Brown Jackson,

51 years old, a judge on the Court of Appeals for the District of Columbia Circuit;

Leondra Kruger,

age 45, a justice on the California Supreme Court; and

Julianna Michelle Childs,

55, a federal judge in South Carolina who has been nominated by Mr. Biden to the D.C. Circuit appeals court.

Judge Jackson, a former law clerk to Justice Breyer, won confirmation in June, receiving the backing of three Republican and all 50 Democratic senators. Republican Sens.

Susan Collins

of Maine,

Lisa Murkowski

of Alaska and

Lindsey Graham

of South Carolina all voted to confirm Judge Brown.

Democrats could confirm a nominee without GOP support. In 2017, then-Majority Leader

Mitch McConnell

(R., Ky) changed the rules to allow Supreme Court nominees to be confirmed with just 51 votes, after Democrats initially blocked the nomination of Justice

Neil Gorsuch.

“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,” Mr. Graham said.

The announcement comes after a tumultuous two months for Mr. Biden and his agenda. Senate Democrats failed to advance their roughly $2 trillion social-policy and climate package in December after Sen.

Joe Manchin

of West Virginia said he couldn’t support it. In January, an effort to overhaul elections was blocked by Republicans and an attempt to change Senate rules to ease passage failed because of opposition from Mr. Manchin and Sen.

Kyrsten Sinema

of Arizona, prompting heated criticism from fellow Democrats.

Their votes will be closely watched in the Supreme Court confirmation process. Both Mr. Manchin and Ms. Sinema have supported Mr. Biden’s judicial nominees in the past. Representatives for both senators didn’t immediately respond to a request for comment.

Activists had been publicly calling for Justice Breyer to step aside as soon as possible, given the dangers of losing the majority in the Senate next year and the Republican majority’s refusal in 2016 to hold a vote on Democratic President

Barack Obama’s

final nominee,

Merrick Garland,

now the attorney general. Justice Breyer’s retirement now gives Mr. Biden plenty of time to move the nomination of his successor through the Senate, a process that typically takes several months at most.

“Justice Breyer is as knowledgeable and smart about the timing and process in the Senate as anyone I know and is as sensitive of the timing issues of possible confirmation of his successor,” said Sen.

Richard Blumenthal

(D., Conn.), a member of the Judiciary Committee. “He was obviously looking at the calendar and he did the right thing,” Mr. Blumenthal said.

Democrats are still steaming over the ideological shift in the court in recent years. Of the nine justices on the Supreme Court, six have been appointed by a Republican president and three by a Democrat. While Mr. Breyer’s replacement won’t change the tilt of the Supreme Court, it would ensure that Democrats don’t further lose ground.