Senate Republicans expect big changes in judicial, Supreme Court confirmations if they take majority

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As the Senate prepared to confirm Judge Ketanji Brown Jackson to the Supreme Court Thursday, Republicans said any 2023 Biden nominee would have a much more difficult path to confirmation under a GOP majority. 

"If we get in charge of the Senate in … 2023, we have a majority, I can promise you nominees like this will not make it through," Sen. Lindsey Graham, R-S.C., said at a press conference.

"It's not that there won't be any more judges. But I promise you that if we were in charge — and we had a say — it would be somebody less extreme filling this seat." 

Sen. John Cornyn, R-Texas, questions Supreme Court nominee Ketanji Brown Jackson during a Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington March 22, 2022.  (AP Photo/Andrew Harnik)

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Sen. John Cornyn, R-Texas, a member of the Senate Judiciary Committee and a former Senate GOP whip, didn't explicitly rule out Republicans confirming a Biden Supreme Court nominee in 2023. But he also didn't commit to it.  

Cornyn also said any Biden nomination would result from negotiations with the GOP majority. 

"I think the Supreme Court's sort of a unique situation. But, of course, you're familiar with the Scalia seat, and I think a lot of it has to do with the timing," Cornyn told Fox News Digital. "And one of the things I can guarantee you though, there'll be a negotiation that will determine who that nominee will be. And so that's the one big change."

Supreme Court nominee Ketanji Brown Jackson testifies during her Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington March 23, 2022.  (AP Photo/Alex Brandon)

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Sen. Ted Cruz, R-Texas, also said in response to a question from Fox News Digital that a GOP majority would affect who President Biden will pick for important vacancies, including the Supreme Court. 

"I think if we see a Republican majority in the Senate, it will have a very significant, moderating effect on the Biden administration's nominees — not just to the Supreme Court, but to the federal courts and to the administration," Cruz said. "The first year and a half the Biden administration consistently has gone hard left. It has been the extreme radical left that has set the agenda."

If Republicans take control of the Senate, Cruz added, "We can expect substantially more scrutiny of Biden nominees across the board. And one would hope that will cause a moderating influence within the administration not to put up extreme nominees outside the mainstream."

Sen. Ted Cruz, R-Texas, speaks at the Conservative Political Action Conference Feb. 24, 2022, in Orlando, Fla.  (AP Photo/John Raoux)

The comments came shortly before the Senate voted 53-47 to confirm Jackson to the Supreme Court, with three Republicans voting for her. Those Republicans were Susan Collins, R-Maine; Lisa Murkowski, R-Alaska; and Mitt Romney, R-Utah. 

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But Biden didn't need any GOP help to confirm Jackson because Senate Democrats hold the de facto majority in the 50-50- Senate. Vice President Harris can break party-line tie votes in the chamber if Democrats all stick together, which they did on the Jackson vote. 

Senate Judiciary Committee Chairman Dick Durbin, D-Ill., Thursday shrugged off the comments from those Republicans, arguing that Democrats plan to hold the Senate. 

"We certainly hope they never have that opportunity," to block future Biden nominees, Durbin said. "We want to continue and build on majority in the November election."

"I think the American people supporting this nominee will understand the stark differences some Republicans would bring to the bench," Durbin added. 

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Jackson will be sworn in to the Supreme Court this summer when Justice Stephen Breyer steps down after the end of the court's current term. 

The new justice will not affect the current 6-3 majority of Republican-appointed justices over Democrat-appointed justices, as Breyer was appointed by former President Bill Clinton. 

But in the event of a vacancy opening up in one of the GOP-controlled seats during 2023, there would likely be a much more contentious confirmation process given the elevated stakes. Republicans previously held open the seat of late Justice Antonin Scalia after he died in 2016 for more than a year, pending the result of the 2016 presidential election. 

Former President Donald Trump won, and the Senate in 2017 confirmed Justice Neil Gorsuch to replace Scalia.