Wednesday’s announcement by Supreme Court Justice Stephen Breyer that he would be retiring at the end of the court’s current session has raised the obvious question of how contentious the battle over his replacement will be.
One thing is almost certain to be true: No matter who is nominated by President Joe Biden, there will be no 87-9 favorable vote – the tally when Breyer was nominated by Bill Clinton in 1994. Though there were occasional exceptions in the decade prior to Breyer, his vote totals were not unusual in that era. Antonin Scalia was approved 98-0, Anthony Kennedy 97-0, and Ruther Bader Ginsburg 96-3. However, no Supreme Court nomination since Breyer’s has received fewer than 22 negative votes, the number against Chief Justice John Roberts in 2005.
