Schumer: Democrats Prepared to ‘Expeditiously Fill’ Any Supreme Court Vacancy

Senate Majority Leader Chuck Schumer (D-N.Y.) speaks to the media after the Senate Democratic policy luncheon on Capitol Hill on June 22, 2021. Joshua Roberts/Reuters

Senate Democrats are ready to quickly fill any Supreme Court vacancy that arises, the body’s top Democrat said in a letter to colleagues on July 9.

“Senate Democrats stand ready to expeditiously fill any potential vacancies on the Supreme Court should they arise,” Senate Majority Leader Chuck Schumer (D-N.Y.) stated in the note.

Schumer also promised that the upper chamber would continue to confirm President Joe Biden’s nominees for lower courts, calling it “critical work.”

Nine justices make up the Supreme Court, with just three of its current members having been nominated by Democrat presidents, including two during the Obama administration, when Biden was vice president.

Republicans were able to confirm Justice Amy Coney Barrett last year before the election, after the death of Justice Ruth Bader Ginsburg, tilting the court further to the right.

Democrats have increasingly suggested or outright called on Justice Stephen Breyer, the oldest Democrat nominee on the court, to step down since Biden has been sworn in.

Democrats fear they'll lose the ability to confirm justices in the latter half of Biden’s term if Republicans flip the Senate, which is currently divided 50–50, but controlled by Democrats through Vice President Kamala Harris—especially after Ginsburg refused to heed to calls to step down during the Obama era.

“Justice Breyer, it’s time to put the Court’s long-term membership ahead of your long and distinguished career,” Rep. Steve Cohen (D-Tenn.) wrote on Twitter last month.

“Justice Breyer is wonderful - on SCOTUS & before that on 1st Circuit,” Rep. Jared Huffman (D-Calif.) added. “But for goodness’ sake HE SHOULD RETIRE NOW.”

Breyer, 82, has been a justice since 1994. He was appointed by President Bill Clinton.

Members of the Supreme Court pose for a group photo at the Supreme Court in Washington on April 23, 2021. Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer, and Associate Justice Sonia Sotomayor. Standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch, and Associate Justice Amy Coney Barrett. Erin Schaff/Pool/Getty Images

Biden is among other Democrats who have said they won’t pressure Breyer to retire.

Besides Breyer’s age, critics don’t like that he warned against expanding the size of the Supreme Court, an idea favored by a number of Democrats in Congress.

Schumer didn’t mention Breyer by name, but the only other ways a vacancy can arise are by a surprise retirement from another justice or a sudden death. The next-oldest justice is Justice Clarence Thomas, 73, and the two Obama appointees, Justices Sonia Sotomayor and Elena Kagan, are in their 60s.

Democrats are still upset that the Republican-controlled Senate, led by Sen. Mitch McConnell (R-Ky.), refused to consider former President Barack Obama’s nominee Merrick Garland in 2016, citing the upcoming presidential election. When Trump proved victorious over Democrat presidential candidate Hillary Clinton, he was able to nominate Justice Neil Gorsuch, who won confirmation.

Trump also nominated Justice Brett Kavanaugh, who replaced retiring Justice Anthony Kennedy.

McConnell said last month that he likely wouldn’t move to confirm a Biden nominee if Republicans control the Senate after the 2022 midterm elections.

“I think it’s highly unlikely—in fact, no, I don’t think either party, if it were different from the president, would confirm a Supreme Court nominee in the middle of an election,” he said.