Some Democrats are mystified that one of their own would oppose President Joe Biden’s judicial nominees simply because of Republican opposition.
“It’s gonna delay justice in many of our courts across the country,” Sen. Laphonza Butler said Thursday of Sen. Joe Manchin’s promise to oppose judicial nominees without a Republican backer. “So yeah, I am concerned about it.”
Judiciary Committee Chair Dick Durbin said “of course” Manchin’s plan could pose a problem.
“We’re 51-49 on a good day,” he told NOTUS. “It takes nothing for us to lose our working majority.”
Manchin said Wednesday that he would vote against judicial nominees who did not have GOP support. While many judicial nominees do have support from at least one Republican, this position could put others on ice — and risk leaving pivotal open seats to a future administration.
Manchin told NOTUS on Thursday that his stance was about promoting bipartisanship.
“I’m a staunch supporter of bipartisanship,” he said. “I’m gonna do everything I can. I got six or seven months left. I want to exercise everything I can to try to make them understand how important it is for this place to have some bipartisanship.”
But some of his Democratic colleagues said it’s better to make decisions based on each nominee rather than a blanket rule.
“I’d rather prefer if he looked at nominees on the merits, rather than allowing Republicans to direct his vote by withholding support,” Sen. Sheldon Whitehouse said.
And while Sen. Jon Ossoff said he “always prefer[s] bipartisanship,” he added, “Ultimately, I judge the nominees on the merits of their qualifications.”
If Manchin sticks to his plan, it puts even more pressure on an already slim majority in the Senate, requiring every Democrat to join the cause for each nominee for a party-line vote or win the support of Republican members during a crucial election year. And if Republicans oppose a nominee on partisan lines — see the decision to block Merrick Garland from the Supreme Court — it could wreak havoc.
“A lot of the Republicans have an agenda. They don’t want nominees to be confirmed,” Sen. Peter Welch said. “It’s not a decision based on merits.”
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Many senators downplayed the significance of Manchin’s promise. Sen. Lindsey Graham of South Carolina noted that some Republicans, himself included, have voted for Biden’s judicial nominees. Sen. Chris Coons said he was optimistic that most nominees will move forward with the backing of Republican senators.
“The ones who we’ve passed in the last few weeks include many that had their home state senators’ support from red states,” said Coons.
Ultimately, Democrats hold the Senate and the White House, so they can get nominees through even with a narrow margin, Sen. Richard Blumenthal pointed out.
“If we have all the Democrats supporting the nominee, we’ll have 50 votes, and the vice president breaks the tie,” he said.
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Ben T.N. Mause and John T. Seward are NOTUS reporters and Allbritton Journalism Institute fellows.