Expect Biden's Supreme Court nominee to appease the radical left

This past week brought the news of Justice Breyer’s plans to retire from the Supreme Court after 27 years of service. It also brings President Biden’s first (and perhaps only) opportunity to leave his mark on the highest court of the land.   

The process to name and confirm a successor to replace Breyer has begun in earnest, although Biden said yesterday at his press conference that he may take until the end of February to announce his nominee.  

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Until then, we will hear familiar names—as well as new names—of possible shortlisters to replace Breyer.  But whomever Biden ultimately nominates, there is no doubt that individual will move the Court’s liberal wing even further to the left. 

Nominated by President Bill Clinton in 1994, Justice Breyer stands out today as a relic of a different political era.  During his tenure, he proved to be one of the more moderate members of Court’s liberal wing, which over time has become more strident. 

Breyer has a reputation for being willing to sometimes compromise with the other side and has adamantly rejected partisanship. Last year, he even criticized court-packing, which angered the Left but earned praise from Senate Minority Leader Mitch McConnell. 

The radicals driving today’s Democratic party recognize that Breyer falls short of their vision for a model justice, which is why the left-wing dark money group Demand Justice launched an unseemly campaign urging Justice Breyer to retire nearly one year ago. 

Demand Justice is funded by the Sixteen Thirty Fund and is part of the vast Arabella Advisors network. The dark money groups within Arabella’s universe bankrolled a massive, years-long infusion of cash to support President Biden and Democratic congressional candidates.  Liberal dark money groups spent over $514 million in the 2020 election cycle, with the Sixteen Thirty Fund alone spending $410 million. 

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During the 2020 campaign season, liberal dark money groups heavily pushed the idea of packing the Supreme Court, even though it had been thoroughly discredited after President Franklin D. Roosevelt’s disastrous pursuit of an enlarged Court.  Several groups even hosted a forum dedicated to "restructuring" the Court—and drew several leading Democratic presidential contenders.  

While the dream of court packing has slipped away, at least for now, the left-wing dark money groups that helped elect Biden and Senate Democrats now have their chance to shape the Court.  

It’s no surprise that two of the most widely reported frontrunners, Ketanji Brown Jackson of the D.C. Circuit and Leondra Kruger of the California Supreme Court, are on Demand Justice’s short list, published before the 2020 election. 

The radical liberals and their dark money funders who control today’s Democratic Party do not want just a younger justice who can serve for several decades. They want one who is more extreme. They seek an ideologue who will unflinchingly impose standards that are invented out of whole cloth while gladly diminishing protections that are actually in the Constitution.  

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Nowadays, many aspects of religious freedom, political speech, and the right to bear arms are unfashionable with the Left, despite their explicit protection by the Constitution’s first two amendments. At the same time, they demand that their judges protect a limitless right to abortion, even if such a right is nowhere to be found in the Constitution.  

With the midterm elections approaching and the Biden administration routinely lambasted for its radical policies and consistent overreach, do not expect either the president or his eventual nominee to be up front about the Left’s shared judicial agenda. Democrats stand to lose big because of their departure from the moderation that Biden professed as a candidate in 2020.  

Instead, expect President Biden to publicly describe his nominee with moderate-sounding traits like "nonideological" and "restrained."  

That is exactly how a fact sheet put out by the Obama White House in 2009 described then-nominee Sonia Sotomayor. And she said just the right words in her testimony before the Senate Judiciary Committee: "The task of a judge is not to make the law—it is to apply the law." Of course, Sotomayor would go on to become the Court’s most predictably strident ideologue.  

In a similar vein, Elena Kagan, when she was a Supreme Court nominee, rejected the empathy standard often touted by liberals and asserted that "it’s the law all the way down" when deciding cases. 

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We have seen this playbook before. And we already know from lower court judicial nominations that Biden is out to appease the dark money groups that helped elect him. For the Supreme Court, the president will pick the most strident activist he can find—someone uninterested in compromise who will be a reliable vote to deliver the Left’s policy preferences.  

He will then tell you that nominee will be a moderate, which is how he packaged himself on the campaign trail in 2020.  As was the case two years ago, he will be lying.  

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