Joe Manchin, and Why His Newfound Power Could Make Him the Justice Kennedy of the Senate

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Joe Manchin may have effectively become the Justice Kennedy of the Senate. When all others have spoken and a tie is imminent, his decision could be the deciding factor. With Democrat control of the White House and an evenly split Senate, all eyes turn to the moderate senator. 

 

Points covered in this article:

 

 

Supreme Court nominees, budget reconciliations, and major tax matters may fall to the mercy of Sen. Manchin, who many are now describing as the most powerful member of the upper chamber. 

 

But who is Joe Manchin, and why is he suddenly so “powerful?”

Joe Manchin is the senior senator from West Virginia. His moderate reputation explains how he, a Democrat, has found so much political success in a state that carries harmonious voting habits. The Mountain State hadn’t, until 2015, elected a Republican senator since the late 1950s, but has voted for Republican presidential candidates for the past 20 years. West Virginia elected Manchin governor from 2005-2010 and has since thrice elected him to the U.S. Senate, including one special election.

 

His newfound power rests in the fact that his vote, in some circumstances, will determine whether the evenly split Senate will come to a tie, thus invoking the tie-breaking role of Vice President Kamala Harris, who serves as the president of the Senate. In these cases the victory will inevitably go to Democrats. However, he’s not the only variable, considering the moderate tendencies of some Republicans, namely Sens. Lisa Murkowski, R-Alaska, Susan Collins, R-Maine, and Mitt Romney, R-Utah.

 

When will Manchin’s vote matter?

 

Manchin’s vote will be significant in simple majority scenarios that, per senate rules, cannot be filibustered. Examples primarily include budget reconciliations and federal judge/justice confirmations. Budget reconciliations are a tool used in Congress to pass time-sensitive high-priority budgetary adjustments. Unlike broader budgetary and general legislation, reconciliations cannot be filibustered. That said, Democrats are likely to be victorious with budget reconciliations.

 

This raises the concern as to whether budget reconciliations can be packed with rider legislation unrelated to the budget and slammed through a vote. But this concern should be reserved since, to that threat, we have the Byrd Rule. This rule applies scrutiny to the content of the reconciliation and aims to filter out any non-budgetary agendas. In short, the purpose of the Byrd Rule is to ensure the integrity of budget reconciliations so that no party slips in their legislative agenda under the guise of “budgetary” purposes.

 

Regarding the Supreme Court, it is worth noting that the eldest of the high court’s jurists, Justice Stephen Breyer, is 82 and will likely be retiring during the Biden administration. With an evenly split Senate and the near-partyline votes for the last three Supreme Court justices, it could seem as if Breyer’s successor would face a tie in confirmation. But the chance of a tie is not likely, given that Republicans have been more supportive of left-leaning nominees than Democrats have been of right-leaning nominees.

 

Of the last two liberal justices to be confirmed, Justice Kagan (2010) garnered five Republican votes while Justice Sotomayor (2009) garnered nine Republican votes. Since then, three justices have been confirmed (all right-leaning) and received less support from Democrats. Justice Neil Gorsuch (2017) received three Democrat votes, Justice Brett Kavanaugh (2018) received one Democrat vote, and Justice Amy Coney Barrett (2020) received no Democrat votes.

 

Manchin was one of three Democrats to vote in favor of confirming Gorsuch and the lone Democrat to confirm Kavanaugh, but refused to vote in favor of Barrett — not on her merit, but on the principle of the then-upcoming election. If history is precedent, Breyer’s confirmation will see near-full Democrat support and some Republican support nullifying the chance of a tie.

 

Where will Manchin break from Democrats?

Perhaps the most influential areas where Manchin breaks from his Democrat colleagues are the filibuster and court-packing. And while some would describe him as a pro-life Democrat, his record doesn’t hail him as such. 

 

Manchin has been loud and clear in his opposition to ending the filibuster, an idea that his Democrat colleagues have touted over the last year. In July 2020, Manchin said,

 

“I have never supported a repeal of the filibuster and I don’t support one now. I am willing to consider solutions that promote collaboration so the Senate is able to be a productive body again. But repealing the filibuster would result in even more partisanship.”

 

 

Manchin affirmed his position in January 2021, saying, “I do not support doing away with the filibuster under any condition. It’s not who I am.”

 

The filibuster is not likely to change anytime soon. Generally speaking, ending the filibuster would be detrimental to the minority party since it would rid them of any leverage in the voting process — and both parties know that they will eventually be in the minority, which is one reason the filibuster has survived. 

 

To end the filibuster would require either a nuclear option, which needs a simple majority, or a formal changing of the Senate rules, which requires a two-thirds majority (67 votes). A two-thirds majority vote is a dream not realistically met, and Manchin and Sen. Kyrsten Sinema, D-Ariz., have both opposed using the nuclear option, essentially blocking any nuclear chance. Like the filibuster, both parties know that they will eventually be in the minority, which is why the nuclear option is largely avoided. 

 

On court-packing, Manchin has been aggressively clear that he has no intention of supporting such measures.

 

“Let me be clear: I will not vote to pack the courts and I will not vote to end the filibuster. The U.S. Senate is the most deliberative body in the world. It was made so that we work together in a bipartisan way. If you get rid of the filibuster, there’s no reason to have a Senate.”

 

 

Equality Act

 

One issue that is a misnomer for those who hail Manchin as a centrist is the Equality Act. The Equality Act, described by Family Research Council as “inequality,” would effectively add sexual orientation and gender identity to the Civil Rights Act of 1964 and other similar laws. Why is this a problem? Because churches, synagogues, mosques, etc. may all face a fierce attack on their religious convictions. Under the Equality Act, the aforementioned houses of worship and even religious institutions of higher education may be forced to hire employees who do not subscribe to their statements of faith and may lose funding for holding tight to their faith. 

 

Manchin is on record of opposing the Equality Act in 2019, though his opposition was relatively nuanced and technical, and he ended up supporting the updated Equality Act in 2020.

 

The Equality Act is an ironic term for the legislation, considering the inequality it applies to personal liberty. Under the Equality Act, faith-based women’s shelters may be forced to house transgender women (biological men). Women are not easily deceived and will know that a man or men are being housed in close quarters with them. Considering why women seek shelters, often to escape abusive relationships with men, it is completely counterproductive to allow men in these facilities. The insensitivity shown here is baffling. 

 

It is highly unlikely that the Equality Act will pass through Congress. The House of Representatives is on track to vote on the Equality Act on Wednesday, Feb. 24. Given the broad favor of the Equality Act among House Democrats, it is likely to pass through the House as it did in 2019 (though in 2019 it was not given a vote in the Senate.) Passage in the Senate in 2021 is highly unlikely. While a simple majority is needed to pass the bill, 60 votes are needed to avoid a filibuster. Moderate Republican Sen. Mitt Romney, R-Utah, opposes the EA, though it is unclear as to whether his moderate colleagues Lisa Murkowski, R-Alaska, and Susan Collins, R-Maine, will fall in line with Romney.

 

 

Procedure trumps policy, because procedure determines policy. The retention of the filibuster is crucial to ensure the parliamentary body remains deliberative and not tyrannical. Manchin is hardly a moderate conservative on policy, but his support for the filibuster is highly favored by moderate and bonafide conservatives. 

 

The highly oppressive Equality Act and other measures favored by Democrats would all become realities in American culture if not for the filibuster. That said, Manchin’s procedural integrity is admirable since he places it above his own policy agenda. But this should not be mistaken for moderate views on abortion or civil rights.