Republican Vote Needed to Confirm Biden Justice?

New Mexico Senator Ben Ray Luján is hospitalized with a stroke.

News I somehow missed, via McClatchy (“Clyburn counts the votes, sees Biden needing GOP support for Supreme Court nominee“):

President Joe Biden’s nominee to the Supreme Court will need Republican support to receive Senate confirmation, a leading Democratic lawmaker said Friday.

Democrats are down to 49 votes in the chamber, following the hospitalization of New Mexico Sen. Ben Ray Luján. Luján had a stroke, his office said in a statement.

Congressman Jim Clyburn, the chief Democratic vote counter in the House of Representatives, told McClatchy in an interview on Friday that Luján’s absence means that Republican votes will be needed to muscle Biden’s soon-to-be named Supreme Court nominee through the Senate.

“The president will likely have a bipartisan pick. It has got to be bipartisan in order to get appointed to the court,” said Clyburn, who represents South Carolina in Congress.

Clyburn is openly pulling for South Carolina Judge Michelle Childs to replace retiring Justice Stephen Breyer on the Supreme Court. He said he has not spoken recently to the president or the vice president about Childs, a federal district court judge, but talked about her this week with South Carolina’s two U.S. senators, Republicans Lindsey Graham and Tim Scott.

Biden is also said to be considering U.S. Appeals Court Judge Ketanji Brown Jackson and California Supreme Court Justice Leondra Kruger for the vacancy.

“I know how to count. I’m the whip,” Clyburn said. “It has to be bipartisan. So I’m reaching out to the two Republicans from South Carolina. I’ve asked them for their support, but I’m talking to other Republicans, as well.”

Clyburn did not say who the other Republicans are that he had spoken to besides Graham and Scott, who he dined with Wednesday in Washington. Graham shared a photo of the trio to his Twitter account.

Graham has committed publicly to supporting Childs, if Biden chooses the University of South Carolina Law School graduate.

In an interview on Friday afternoon, Clyburn said that he met with the Republican senators to seek their support for Childs’ possible nomination.

“The meeting was just about informing them of what I was doing, and knowing full well that you got to have more than 50 votes to get anybody on the court, and it’s got to be bipartisan for us to do that,” Clyburn said.

“We only have 49 votes up here. We have 50 Democrats, with one that will be out for several weeks because of a stroke, and we cannot get it done, unless we get 50 votes,” Clyburn said.

While there was a time when I knew the names of all 100 Senators, I must confess that I had never before heard of Ben Ray Luján. I nonetheless wish him a full and speedy recovery. A statement issued by his chief of staff says his doctors expect he will.

My guess is that Clyburn is simply grandstanding here in a bid to tip the scales to his favored candidate. Yes, he’s the House Whip and a seasoned vote-counter. But he’s not on the Senate side and, frankly, any of us can count to 50. If Luján were unable to vote in this Congress, obviously, the Democrats fall short of 50 votes because, well, they only have 50 if you count Luján.

A more detailed report in the Las Cruces Sun-News indicates the surgeons got to Luján quickly and that, barring complications, he should be back in DC in “four to six weeks.” A neurosurgeon quoted in the piece says that he could conceivably do Zoom calls much sooner than that–even next week. So there’s just no reason to think he won’t be able to vote for whomever it is that President Biden selects.

If that’s Childs, I’m fine with it. She’s relatively young at 55 and a state judge who didn’t attend an Ivy League school would be a step toward diversifying the Court. And getting the two South Carolina Republican Senators on board would be a bonus. I just don’t think it’ll be necessary.

An AP report (“History shows every moment counts for Dems’ hold on Senate“) gets more ghoulish, noting that there are a lot of old people in the Senate, with 19 who caucus with the Democrats over 70 and at least two in their 80s, and pointing out that more than 600 Senators have died in office or resigned early. While that is indeed a “precarious” situation, I don’t know that we need to spend a lot of time speculating over the possibilities.

FILED UNDER: Law and the Courts, Supreme Court, US Politics,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Kathy says:

    I don’t know. I hear the Masters program for “Counting Past 42” at M.I.T. requires tons of postgraduate work and most who attempt it wash out.

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  2. Mister Bluster says:

    While there was a time when I knew the names of all 100 Senators, I must confess that I had never before heard of Ben Ray Luján.

    Don’t beat yourself up over this. There are United States Citizens who are unaware that New Mexico is represented by one of the stars added to the American Flag in 1912 when New Mexico and Arizona were granted Statehood. They think that it is part of Estados Unidos Mexicanos.

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  3. HarvardLaw92 says:

    The degree to which he (and Lindsay Graham) are shamelessly trying to armtwist and shove Childs to the front of the pack is a tad undignified. Graham’s support alone should be cause for concern. Lujan should be back in the Senate by the time that his vote would be necessary for actual confirmation, I’d think.

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  4. Michael Cain says:

    @Mister Bluster:

    Don’t beat yourself up over this. There are United States Citizens who are unaware that New Mexico is represented by one of the stars added to the American Flag in 1912 when New Mexico and Arizona were granted Statehood. They think that it is part of Estados Unidos Mexicanos.

    I have friends in Sante Fe who do contract and consulting work for a number of large companies around the US. It is simply dumbfounding how often they have to argue with those HR departments that no, they don’t need to fill out the extra non-domestic company forms.

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  5. gVOR08 says:

    @Mister Bluster: A bit of trivia. Something last week made me look up how many stars the flag had during the Civil War. Turns out it was 33, 34, 35, and 36. When the War broke out, Oregon had been admitted for 33. During the course of the war one-by-one Kansas, West Virginia, and Nevada were admitted. I could see that being an issue for continuity guys on Civil War movies. And I imagine there was significant lag in getting flags reissued to everybody.

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  6. Just nutha ignint cracker says:

    @HarvardLaw92: I’m to the point with Sen. Graham that if he said it was a nice day, I’d go to the window and look, but I’m like that about a lot of other people, too.
    […]
    Standing by waiting for the first evangelical to say that Lujan’s stroke is a sign from God that Biden shouldn’t get a Supreme Court choice, but that’s too easy a call. I’ll take the Pat Robertson “God told me this in a vision” square on the pool board if it’s available.

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  7. Just nutha ignint cracker says:

    @Michael Cain: “…friends in Sante Fe…”

    Would it help if they moved their business to Alburquerque?

  8. Mu Yixiao says:

    @gVOR08:

    New flags are unveiled on July 4th. So if any of those states were admitted between July 4th of consecutive years, they wouldn’t change the flag.

    Looking it up… Wow. They were all more than a year apart, so yep! They’d have different flags.

  9. Mu Yixiao says:

    @Just nutha ignint cracker:

    I’ll take the Pat Robertson “God told me this in a vision” square on the pool board if it’s available.

    .

    I'll take the "It's a side effect of the vaccine" square.

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  10. Gustopher says:

    With a Democratic Governor, we’re fine if Luján dies. Not that this is the ideal scenario, of course.

    But, if he is going to be incapacitated for a while, couldn’t he resign, get replaced with an elder-statesman placeholder, who then resigns and gets replaced by Luján?

    Surely there’s some ancient Nuevo Mexicano Democrat who would like to be called Senator.

    Huh, the Governor I also have never heard of also hears Lujan in her name. Does Lujan mean unknown in Spanish?

  11. Zachriel says:
  12. Michael Cain says:

    @Gustopher:

    But, if he is going to be incapacitated for a while, couldn’t he resign, get replaced with an elder-statesman placeholder, who then resigns and gets replaced by Luján?

    Given that sequence, aren’t you a little afraid that at the point Luján resigns, McConnell executes some skullduggery to declare the Republicans have the majority, it passes 50-49, and then refuses to swear the replacement in? There’s all kinds of weird things in the Senate rules…

  13. Kurtz says:

    @Mu Yixiao:

    I’ll take the “It’s a side effect of the vaccine” square.

    Bravo!

  14. Gavin says:

    As John Cole opined some time ago, there is no compromise with Republicans over this or anything else.
    It’s like trying to decide what to have for dinner — You suggest Italian, and your date suggests anthrax and tire rims.

  15. Not the IT Dept. says:

    @Mister Bluster: 1912

    I am absolutely convinced that there were at least some Birthers who don’t know that Hawaii is a state and assumed it’s a foreign country.

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