SCOTUS Odds Favor Senate Confirmation of President Biden Appointment by 2022 End

Posted on: January 26, 2022, 12:32h. 

Last updated on: January 26, 2022, 01:31h.

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The Supreme Court of the United States (SCOTUS) will soon have a vacancy. Today, Justice Stephen Breyer announced his forthcoming resignation.

SCOTUS odds Supreme Court Stephen Breyer
Supreme Court Justice Stephen Breyer stands outside the Supreme Court Building in Washington, DC, in 2011. Breyer is planning to depart the bench sometime this summer, clearing the way for President Joe Biden to make his first SCOTUS appointment. (Image: New York Times)

Breyer plans to depart the high court this summer. The liberal justice’s forthcoming exit will allow President Joe Biden to fulfill one of his campaign promises of appointing the first Black woman to the Supreme Court.

Online political betting exchange PredictIt today naturally saw a surge in trading activity on its SCOTUS markets.

“Will the Senate confirm a Supreme Court justice in 2022?” saw less than 400 shares traded yesterday. But since reports surfaced regarding Breyer’s pending departure, more than 1,000 traded shares have resulted in “yes” shares skyrocketing to 35 cents.

The market currently gives the Senate a 92 percent chance of confirming the next SCOTUS justice before year’s end.

Potential Nominees

With Biden’s pledge to name a Black female to the court, a shortlist of potential candidates has already emerged.

CNN likes the odds of DC Circuit Court Judge Ketanji Brown Jackson, California Supreme Court Justice Leondra Kruger, and South Carolina US District Court Judge J. Michelle Childs. 

Jackson opened as the favorite on PredictIt’s newly launched market regarding the next SCOTUS nominee at 59 cents. Childs is next at 17 cents and Kruger third at 14 cents.

Political Makeup

Beyer’s departure isn’t expected to change the political makeup of the court. The conservatives will retain a 6-3 advantage since Biden will almost certainly nominate a left-leaning judge.

Supreme Court justices are supposed to be apolitical, but few political pundits would argue that is the case in 2022.

Following Justice Harry Blackmun’s retirement in 1994, Breyer was appointed by President Bill Clinton in May of that year and confirmed less than two and a half months later on July 29, 1994. Breyer was widely supported in the Senate by a confirmation vote of 87-9.

Fending off calls last year for his resignation in order to allow Biden to appoint a younger Democrat, the now 83-year-old said such efforts only further politicize the court.

“It is wrong to think of the court as another political institution,” Breyer declared at Harvard Law School. “It is doubly wrong to think of its members as junior league politicians.”

Senate Power

The US Constitution does not set any minimal qualifying standards for a Supreme Court nominee. This means Biden could legally appoint anyone of his choosing. But for the nominee to take a seat on the court, he or she must receive majority support during the Senate confirmation proceeding.

Only a simple majority is needed for confirmation. With the Democrats currently holding the slimmest majority in the 50-50 Senate, VP Kamala Harris will serve as the tie-breaking vote. This means Democrats will want to confirm Biden’s appointment before the 2022 midterms.

Senate Majority Leader Chuck Schumer (D-New York) said today that Breyer’s replacement will be “confirmed by the full United States Senate with all deliberate speed.”

In addition, a total of 34 Senate seats are up for election on Nov. 8.

PredictIt’s market on Senate control following the midterms gives the GOP a 76 percent chance of possessing power in the upper chamber of Congress next year.