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Report: McConnell Could Block Biden From Replacing Justice Breyer On Supreme Court

Supreme Court

Senate Minority Leader Mitch McConnell (R-KY) reportedly has the ability to stop Democrat President Joe Biden from replacing Supreme Court Justice Stephen Breyer, who is expected to announce his retirement on Thursday.

After previous changes to Senate rules, only 51 votes are needed to confirm a judicial nominee, known as using the “nuclear option.” With the Senate split 50-50, Democrats will need all their Senators to vote for the nominee along with Vice President Kamala Harris as the tie-breaking vote.

“But the nuclear option can go into motion only if the Judiciary Committee reports the nomination to the floor, a procedural move that says whether a majority on the committee recommends the full Senate consider the pick,” TIME Magazine reported. “Well, in a little-noticed backroom deal that took more than a month to hammer out, McConnell and Senate Majority Leader Chuck Schumer agreed to a power-sharing plan in February that splits committee membership, staffs and budgets in half.”

“If all 11 Republican members of the Judiciary Committee oppose Biden’s pick and all 11 Democrats back her, the nomination goes inert. The nomination doesn’t die, but it does get parked until a lawmaker—historically, the Leader of the party—brings it to the floor for four hours of debate,” the report added. “A majority of the Senate—51 votes, typically—can then put debate about the issue on the calendar for the next day. But that’s the last easy part. When the potential pick comes to the floor again, it’s not as a nomination. At that point, it’s a motion to discharge, a cloture motion that requires 60 votes. In other words, 10 Republicans would have to resurrect the nomination of someone already blocked in the Judiciary Committee.”

The news that Justice Breyer plans to retire broke on Wednesday, as sources close to Breyer leaked the news to multiple outlets.

“Breyer, 83, is expected to stay on until the end of the court term and until a replacement is confirmed, a well-placed source familiar with the matter told CNN,” CNN reported.

“He informed Biden of his plans last week and will formally announce his retirement at a White House event with the President as early as Thursday, two sources told CNN,” the outlet added. “Although Biden’s pick will not change the balance of the court, given that Breyer will almost certainly be replaced with a fellow liberal, the new nominee is expected to be much younger and could serve on the court for decades. The court currently has six conservative justices appointed by Republican presidents, and three liberals appointed by Democrats.”

Breyer was reportedly “upset” that the news leaked before he was able to make a formal announcement.

“Justice Breyer was not planning to announce his retirement today,” Fox News legal correspondent Shannon Bream reported, adding, “I’m told that he is ‘upset,’ that the way that this is being handled was not the timeline that he had planned.”