Democrats seek reboot around Supreme Court vacancy: The Note

Justice Stephen Breyer’s retirement offers a rare and well-timed opportunity for Democrats to deliver on a critical promise.

January 27, 2022, 8:41 AM

The TAKE with Rick Klein

Candidate Joe Biden's public pledge to nominate a Black woman to the Supreme Court came at a low point in his candidacy, as he sought to bounce back after setbacks in the first states to vote.

Now, 23 wild months later, Biden is at something of a low point in his presidency. He has a chance to make good on his commitment and possibly achieve a good bit more, depending on how the weeks and months play from here.

Justice Stephen Breyer's retirement offers a rare and well-timed opportunity for Democrats to deliver on a critical promise and to remind their base that elections indeed have consequences. While his predecessor got three Supreme Court vacancies to fill, this could wind up being Biden's only shot, given the age gap between Breyer and the other justices and the possibility that Republicans could take control of the Senate this year.

PHOTO: U.S. Supreme Court Justice Stephen Breyer testifies during a Financial Services and General Government Subcommittee in Washington, March 23, 2015.
U.S. Supreme Court Justice Stephen Breyer testifies during a Financial Services and General Government Subcommittee in Washington, March 23, 2015.
Bloomberg via Getty Images,FILE

It's fair to expect a partisan showdown, though the process could also test Biden's notion that it's still possible to get Republicans to cross party lines. Democrats will need at least some GOP acquiescence in the 11-11 Senate Judiciary Committee; the fact that replacing Breyer will likely not involve changing the court's ideological makeup makes crossover votes at least theoretically possible.

On one level, with Breyer serving out a high-stakes court term that could see major setbacks for progressives on racial justice and reproductive rights, the best Biden and his party can hope for is to maintain the status quo on a Supreme Court loaded 6-3 with GOP appointees.

Even that pursuit, though, could prove a political boon for a party looking to deliver and simply stay united for a change. There's no time like the present.

The RUNDOWN with Averi Harper

Backlash has been swift for Virginia Gov. Glenn Youngkin's tip line established for parents to report what he considers "divisive practices" in schools.

On his first day in office, Youngkin issued an executive order banning divisive topics, including what Republicans have labeled "critical race theory."

On a conservative podcast, Youngkin asked parents to alert his administration to "any instances where they feel that their fundamental rights are being violated, where their children are not being respected, where there are inherently divisive practices in their schools."

PHOTO: Virginia Gov. Glenn Youngkin visits Carilion Roanoke Memorial Hospital and speaks with reporters after signing an executive order regarding healthcare workers, Jan. 20, 2022, in Roanoke, Va.
Virginia Gov. Glenn Youngkin visits Carilion Roanoke Memorial Hospital and speaks with reporters after signing an executive order regarding healthcare workers, Jan. 20, 2022, in Roanoke, Va.
Scott P. Yates/The Roanoke Times via AP

"We're going to get critical race theory and other inherently divisive teaching practices out of the schools," Youngkin said.

Now Olivia Julianna, a teen activist from Texas with a six-figure TikTok following, is calling on Gen Zers to disrupt that plan by flooding the designated email account with messages.

"Remember when Gen Z crashed that ab0rtion [sic] whistleblower website? Well now there's a website started by the republican governor of Virginia to snitch on teachers for teaching about "divisive" things like race," the TikTok post reads. She later added, "Y'all know what to do."

Among those also decrying Youngkin's tip line is singer John Legend who called for Black parents to overwhelm the email "with complaints about our history being silenced."

The TIP with Alisa Wiersema

The first Senate debate of Ohio's pivotal campaign season will be between a progressive Democrat and a Trump-aligned Republican --​even though both parties' primary elections are months away.

The unorthodox event is set to take place on Thursday in Columbus and will feature Democrat Morgan Harper and Republican Josh Mandel. In a joint statement announcing the debate, Mandel, a former state treasury secretary, and Harper, an activist and attorney, each indicated they are hoping the debate will engage Ohio voters about the consequences of the race.

PHOTO: Ohio State Treasurer Josh Mandel speaks at the Ohio Republican Party election night celebration in Columbus, Ohio, Nov. 4, 2014.
Ohio State Treasurer Josh Mandel speaks at the Ohio Republican Party election night celebration in Columbus, Ohio, Nov. 4, 2014.
Tony Dejak/AP, FILE

"I'm not afraid to take on anyone from either party on any issue. I'm looking forward to debating Morgan Harper, a leading Democrat contender for Senate, to compare and contrast our visions for Ohio and where we stand on the issues," Mandel said in a statement.

It is unlikely the other, high-profile Democratic candidate -- Rep. Tim Ryan -- would agree to debate a Republican at this stage of the campaign cycle. However, it is very possible Ryan is brought up on the debate stage as a common foe to both candidates given that Harper is already throwing a jab his way.

"I've invited my primary opponent, Tim Ryan, to debate me but so far he has refused. Ohioans who care about our state's future have no time to wait. In the meantime, I'm ready and willing to take on the Republicans in this race," Harper said in a statement.

NUMBER OF THE DAY, powered by FiveThirtyEight

100%. With the news that Justice Breyer will retire, Biden and Democrats, who control the Senate by the narrowest of margins, have all the power they need to fill his seat. Not a single Republican vote will be needed. Then again, two Democrats, Sens. Joe Manchin and Kyrsten Sinema, have already torpedoed several major Democratic priorities. Could Manchin and/or Sinema delay -- or even block -- the confirmation of Breyer's replacement too? It's unlikely. Both Manchin and Sinema have voted yea on 100% of Biden's judicial nominees so far -- as have all Democrats. Read more from Nathaniel Rakich at FiveThirtyEight.

THE PLAYLIST

ABC News' "Start Here" Podcast. Start Here begins Thursday morning with a roundtable discussion from ABC News' Kate Shaw and Rick Klein on Supreme Court Justice Stephen Breyer's retirement. Then, ABC News' Matt Gutman details the search for a Navy fighter jet that crashed in the South China Sea. And, Washington, D.C. Attorney General Karl Racine breaks down his lawsuit against Google over data tracking. http://apple.co/2HPocUL

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The Note is a daily ABC News feature that highlights the day's top stories in politics. Please check back Thursday for the latest.

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