Close your eyes and picture Jan. 3, 2021: The Capitol is teeming with 35 newly sworn-in Senators, four of whom have given the Democrats a 51-50 majority with the vice president-elect’s tie-breaking vote; Republican Senate rule has ended and, with their enlarged House majority, Democrats now control both branches of government for the first time in twelve years.
President-elect Biden and his team are busy crafting an ambitious legislative program, dealing with transition tasks of agency appointments and anticipated judicial nominations and planning the upcoming inauguration. Democrats are happy. Exciting opportunity is in the air.
But within a few days, the Democrats’ party crashes to a halt with the news that a Supreme Court opening has suddenly materialized, and the opening comes from the progressive wing of the court. The immediate assumption is that the 51-50 Democratic majority will ensure that a new nominee will reflect the judicial profile of her predecessor. Not so fast: Between Jan. 3 and Inauguration Day on Jan. 20, outgoing Vice President Mike Pence will still cast tie-breaking votes. And worse, Donald Trump is the undisputed president until noon on the 20th, able to nominate SCOTUS and other judicial nominees, all lifetime appointments.