With Kamala Harris looking unelectable, the Democrats are considering the nuclear option

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Kamala Harris and Joe Biden – Evelyn Hockstein/ Reuters

Democrats desperately scrambling to find a potential successor to Joe Biden in 2024 are whispering about a potential nuclear option that could see Kamal Harris, the current Vice President, nominated to the Supreme Court.

While the scenario is highly improbable, and perhaps a reflection of a Washington rumour mill in overdrive, the fact it has come up at all shows the depths of the predicament the Biden administration currently finds itself in, amid rising inflation, a stalled domestic agenda, and foreign policy disasters.

Polls are now regularly showing Mr Biden's approval rating below 40 per cent, and panic set in at the White House after a recent poll put Kamala Harris at an unelectable 28 per cent.

Behind-the-scenes discussion of how Democrats could arrive at a third option for the next election are under way.
Operatives are preparing for the possibility of a contested presidential primary in which other would-be nominees take on Ms Harris, but that could be damaging for the party.

The left-field Supreme Court theory would mean Mr Biden nominating Ms Harris, a former high-flying prosecutor, if a seat on the court became available over the next three years, which it may well. Mr Biden could then use Section 2 of the 25th Amendment to nominate a more popular vice president.

That person would be the presumptive Democrat nominee should Mr Biden not run for re-election at the age of 82.

If Mr Biden stepped down before Nov 2024, the new vice president, under Section 1 of the 25th Amendment, would assume the presidency, and be able to run as an incumbent.

It is, of course, all wildly hypothetical, but constitutionally feasible.

No precedent, but no impediment

The idea of a Supreme Court nomination for Ms Harris was first reported by CNN which, while calling it an “Aaron Sorkin-style rumour” – a reference to the creator of The West Wing – said the “chatter has already reached top levels of the Biden orbit”.

Ms Harris was in the frame for nomination to the Supreme Court by Barack Obama in 2016, but wanted to run for the US Senate instead.

There is no precedent for a sitting vice president being nominated to the Supreme Court. However, Erwin Chemerinsky, the dean of the University of California at Berkeley School of Law, said: “I do not see any impediment to a sitting vice president being nominated for the Supreme Court.”

If the unlikely theory were to play out Ms Harris would need to be confirmed to the court by a simple majority in the Senate, which is split 50-50, and where she herself currently holds the casting vote as Vice President.

According to Constitutional experts Ms Harris would then have to resign as vice president to sit on the court, allowing Mr Biden to nominate a successor.

Mr Biden, 79, has publicly pledged to seek re-election, but senior figures within the Democratic Party remain sceptical that he will.

Meanwhile, Ms Harris's allies maintain she has been hamstrung in office by difficult assignments, including stopping the flow of central American migrants and protecting voting rights.

One long-time Democratic strategist, who is close to the Vice President, dismissed reports of a tense relationship with Mr Biden.

“We've seen similar types of stories in every administration, about how the Vice President's office is getting along with the President's office,” the strategist said.

“There were those stories when Joe Biden himself was vice president, so some of this is fairly standard.” The source added: “Sometimes to deflect from number one, you go after number two.”

As to a Supreme Court vacancy, the Bill Clinton appointee Justice Stephen Breyer, 83, is the oldest of the nine justices, and is under increasing pressure from left-wing Democrats to retire. They want Mr Biden to install younger liberal justice now in case the White House is lost in 2024.

Justice Breyer has left that possibility open, recently saying he does not “want to stay on the Supreme Court until I die”.

Mr Biden has previously pledged to nominate a black woman to the court should an opportunity arise.

The discussion over potential successors to Mr Biden is highly unusual less than a year into an administration.

Chris Dodd, a former senator and key Biden ally who helped him select Ms Harris, has openly hinted that she is not a shoo-in for the top job.

Instead, Mr Dodd simply stated it would be “hard to believe there would be a short list without Kamala’s name on it.”

Any number of Democrats who ran against Mr Biden in 2020 could throw their hat into the ring once again, with Pete Buttigieg already being speculated about.

The 39-year-old transport secretary has boosted his public profile by positioning himself as a key implementer of Mr Biden's signature infrastructure legislation.

Senator Amy Klobuchar has been holding a national book tour, while New Jersey senator Cory Booker and Massachusetts senator Elizabeth Warren have been active in the most critical voting states.

While a sitting vice president has never moved to the Supreme Court, one former president did. In 1921 former president William Taft was nominated to the court and served as Chief Justice of the United States for a decade.

And while the circumstances were very different, there is a precedent for the 25th Amendment being used to install an unelected vice president, who then becomes an unelected president.

In 1973 vice president Spiro Agnew resigned, and then president Richard Nixon nominated Gerald Ford to succeed him. Less than a year later Mr Nixon resigned and Mr Ford assumed the presidency, using the 25th Amendment to nominate Nelson Rockefeller as his new vice president.

For over two years Mr Ford and Mr Rockefeller were president and vice president, with neither of them having been elected to the offices.

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