POLITICO NIGHTLY: Why Breyer isn’t like BBB

BY RENUKA RAYASAM Presented by AT&T Associate Justice Stephen Breyer sits during a group photo of the Justices at the Supreme Court. | Erin Schaff-Pool/Getty Images BREYER’S NEW FLAVOR — Supreme Court Justice Stephen Breyer, who upended Washington today when the news broke that he will retire at the end of this term, was confirmed to the high court in 1994 with a 87-9 Senate vote — the last SCOTUS nominee with fewer than 10 dissenting votes. Joe Biden presided over the confirmation back then as the chair of the Senate Judiciary Committee. Now he will make the pick as president, and he is expected to fulfill a campaign promise to nominate the first Black woman to the Supreme Court. This time, Breyer’s replacement could become the first justice to be confirmed by a tie vote in the Senate. Nightly chatted with Congress editor Elana Schor over Slack today about what to expect from the confirmation process. This conversation has been edited. How quickly could the Senate get a nominee through? Do you think they’ll do it before Breyer actually retires? Democrats would love to move as expeditiously as possible, of course. Justice Amy Coney Barrett got her confirmation vote about a month and a half after Justice Ruth Bader Ginsberg’s death, which qualifies as light speed in the tradition-bound Senate. Theoretically speaking, it’s possible to get a nominee through before the high court’s term ends in late June or early July. But the more likely reality is a pre-Labor Day confirmation, given the fact that the White House’s $1.7 trillion social spending bill is also in line for a reboot and a possible Senate vote in the next few months. Do you expect a tie Senate vote, or might a few Republicans vote to confirm a Biden justice? I’ve long since learned to never predict Senate vote counts. That said, Judge Ketanji Brown Jackson — a leading contender for this nomination — was confirmed for an appellate court judgeship last year with 53 votes, every Democrat plus three Republicans (Lindsey Graham, Lisa Murkowski and Susan Collins). It’s entirely feasible that Jackson, or whomever else the president taps, nabs between one and five GOP votes. After all, five Republican senators are retiring this year, so they have little to fear in terms of conservative blowback at the ballot box. If there is a tie vote, though, we should expect the vice president to be in the chair to break that tie. Nothing in the Constitution excludes SCOTUS from her power to break a Senate tie. And as we have also reported, the veep is almost certainly not going to be the nominee. What strategies do Republicans have to block this appointment,  if any? It’s tough to say much specific about GOP strategy here before we have a nominee. We should expect Republican aides and operatives to pore over the pick’s past record, particularly her rulings. An interesting factor with Judge Jackson would be her presence on an appellate court that tends to hear politically divisive cases. But no matter who the nominee is, the power of presidents to stock the high court has always been a centerpiece of GOP messaging. Expect that to come up in 2024 for sure, and possibly 2022. I’ve seen tweets from worried liberals that Democratic senators are going “screw this up.” Why is this a fear, and could that actually happen? LOL, well, it wouldn’t be the Democratic Party without liberals worried about the Senate. Some of that is just reflexive progressive distrust of Joe Manchin and Kyrsten Sinema. Is it theoretically possible that a Biden nominee could make a gaffe so apparent that Manchin and Sinema would begin to face pressure to not back her, imperiling the process? Sure. Is it likely? No. Press secretary Jen Psaki reiterated today that Biden is going to nominate a Black woman to the court. Could that repair some of the damage done to the party with Black voters and lawmakers after the failure of voting rights reform? Three of our best reporters ran down the complete short list of Black Caucus favorites earlier today. There won’t be one consensus CBC pick, which could make things a bit easier for the White House. As far as repairing the damage, the Black Caucus doesn’t pin much blame on Biden. They’re instead miffed at the Senate centrists who wouldn’t weaken the filibuster to get the bill done. But could this distract dejected progressives and Black Caucus members from the hangover of that voting reform failure? Absolutely. As long as this confirmation goes smoothly and as expected. Welcome to POLITICO Nightly. Reach out with news, tips and ideas at nightly@politico.com . Or contact tonight’s author at rrayasam@politico.com, or on Twitter at @RenuRayasam.   A message from AT&T: Accessible, affordable broadband helps communities reach their American Dream. That’s why we’re making a $2 billion, 3-year commitment toward helping close the digital divide, so more low-income families have the ability to succeed. Learn more.   WHAT'D I MISS? — Powell faces volatile markets as Fed signals March rate hike: The Federal Reserve signaled it will likely raise interest rates in March, expected to be the first in a series of rate hikes this year amid surging inflation. “With inflation well above 2 percent and a strong labor market, the [Fed’s rate-setting] Committee expects it will soon be appropriate to raise the target range for the federal funds rate,” the committee said in a statement. — Biden to talk gun violence with Adams in visit to NYC: Biden will come to New York City and meet with Mayor Eric Adams next week to discuss combating gun violence, the White House announced today. Biden and Adams plan to “discuss the administration’s comprehensive strategy to combat gun crime, which includes historic levels of funding for cities and states to put more cops on the beat and invest in community violence prevention and intervention programs, as well as stepped up federal law enforcement efforts against illegal gun traffickers,” according to a statement from the White House. — Pressure mounts in Congress for IRS to give taxpayers relief: More than 200 lawmakers are pushing the IRS to give taxpayers a break on penalties they’re racking up because of mail delays at the agency, just days after the start of a tax filing season that officials warned could be marred by difficulties. The Senate and House members, from both parties, want the agency to excuse penalties in some cases, delay collections and put fewer limits on taxpayers’ ability to claim reasonable cause for relief, they said in a letter to IRS Commissioner Chuck Rettig. The push is being led by Sens. Bob Menendez (D-N.J.) and Bill Cassidy (R-La.) and Rep. Linda Sánchez (D-Calif.). — Florida collectibles dealer connected to Gaetz probe to plead guilty: A Florida collectibles dealer connected to the ongoing federal investigation into Rep. Matt Gaetz has agreed to plead guilty to conspiracy to commit fraud and drug charges and cooperate with authorities. Joe Ellicott, known as “Big Joe,” was named on a federal grand jury subpoena in late December 2020 as part of a federal probe into alleged crimes “involving commercial sex acts with adult and minor women, as well as obstruction of justice.” Gaetz and several other men were also listed on that subpoena, POLITICO has previously reported.   JOIN NEXT FRIDAY TO HEAR FROM GOVERNORS ACROSS AMERICA : As we head into the third year of the pandemic, state governors are taking varying approaches to public health measures including vaccine and mask mandates. "The Fifty: America's Governors" is a series of live conversations featuring various governors on the unique challenges they face as they take the lead and command the national spotlight in historic ways. Learn what is working and what is not from the governors on the front lines, REGISTER HERE.     AROUND THE WORLD Civilian participants in a Kyiv Territorial Defense unit warm up while training on a Saturday in a forest in Kyiv, Ukraine. | Sean Gallup/Getty Images U.S. NATO SEND RESPONSE TO MOSCOW — The U.S. has delivered its reply to recent Russian demands for sweeping security guarantees, including a withdrawal of NATO forces from Eastern Europe and hard assurances that Ukraine will never join NATO, David M. Herszenhorn writes. In parallel, NATO delivered its own written response to a separate set of demands that the Russians had made to the alliance. Moscow issued its demands in the form of proposed security “treaties” following an outcry by the U.S. and other Western powers over a huge Russian military mobilization on the Ukrainian border involving upwards of 100,000 troops as well as tanks, artillery and other sophisticated weaponry. While the contents of the Western responses were not released, senior leaders have been clear they will not negotiate on Russia’s core demands even if they are willing to discuss other concerns. Officials also made an effort tonight to display a united front amid ongoing disagreements among allies over exactly how — and when — to punish Russia in case of an invasion. “Our responses were fully coordinated with Ukraine and our European allies and partners,” U.S. Secretary of Antony Blinken said in remarks. But, he noted, “we’re not releasing the document publicly.”   A message from AT&T:     NIGHTLY NUMBER More than 4 in 10 The proportion of people who believe that both the BBB and the infrastructure bill will increase inflation, according to a POLITICO-Harvard survey that shows significant concern over whether big-ticket items could lead to more inflation.   STEP INSIDE THE WEST WING: What's really happening in West Wing offices? Find out who's up, who's down, and who really has the president’s ear in our West Wing Playbook newsletter, the insider's guide to the Biden White House and Cabinet. For buzzy nuggets and details that you won't find anywhere else, subscribe today.     PARTING WORDS THE COMING CRYPTO FIGHT ON THE HILL — Cryptocurrency proponents are blistering a House bill designed to bolster the United States’ economic competitiveness with China, saying it could subject financial institutions to unchecked monitoring and oversight from the Treasury Department, Sam Sutton writes. The competitiveness bill released by House Democrats this week, H.R. 4521, includes language that would grant the Treasury secretary more authority to freeze or monitor financial accounts used for cross-border illegal activity. The language authored by Rep. Jim Himes (D-Conn.) is intended to address the use of digital assets in ransomware attacks, money laundering and other frauds. The Senate passed its version of the competitiveness bill, S. 1260, in a 68-32 vote last year. The House provision drawing ire from digital currency advocates was not in the Senate bill. The cryptocurrency think tank Coin Center claimed the bill would eliminate legal safeguards protecting financial institutions and consumers from federal overreach — including caps on how long accounts can be monitored or frozen. The bill also grants the Treasury secretary more latitude to identify “transmittals of funds” — including digital assets — as a money laundering concern.   A message from AT&T: Brooke Dryden’s daughter was diagnosed with learning disabilities at an early age. She requires an individualized education plan and weekly therapy with speech specialists. However, rural Colorado does not have the kind of specialists she needs. With the help of accessible and affordable broadband, Brooke is able to ensure that she receives regular virtual therapy and never falls behind. Brooke’s dream is to see her daughter not just survive but thrive in the world. That’s why AT&T is dedicated to helping close the digital divide with a $2 billion, 3-year commitment, so more low-income families like Brooke's can achieve their American Dream. Learn more.     Follow us on Twitter Chris Suellentrop @suellentrop Tyler Weyant @tweyant Renuka Rayasam @renurayasam Myah Ward @myahward   FOLLOW US

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