A jolt of excitement hit the Biden presidency last week when Justice Stephen Breyer somewhat surprisingly announced his retirement from the United States Supreme Court.
Breyer was appointed by President Bill Clinton in 1994.
Only last March, Breyer spoke against “court packing” as Democrats called for the addition of justices to the high court to counter its conservative tilt.
Breyer said such a move would undermine confidence in the court, and advocates for adding seats should “think long and hard before embodying those changes in the law.”
That sentiment, although not exactly on point as to the appointment of a successor to a retiring justice, caused court watchers to believe Breyer, who is 83 and in good health, would stay on the bench at least a few more years. Breyer has also been known to scoff at the liberal and conservative labels attached to Supreme Court justices.
He was not expected to bow to pressure to retire while a Democrat is in the White House and that party holds a slim majority in the Senate, which confirms the president’s nominee. It’s that majority that will almost assure Biden’s pick for the next justice will have an easy confirmation process.
For those who want to make sure Breyer’s seat stays left-leaning (Breyer is considered liberal-to-moderate, but makes up the current liberal wing of the court along with Sonia Sotomayor and Elena Kagan), the timing is crucial. Breyer intends to step down at the end of the current term when the Court recesses for summer, typically late June or early July.
The Dems currently hold 50 Senate seats with Vice President Kamala Harris having the tie-breaking vote. Mid-term elections later this year could swing the Senate majority back to the GOP, making a Biden Supreme Court nominee less of a slam-dunk. Biden is sure to make his nomination in plenty of time so confirmation will take place well before the November mid-terms.
One wonders if Breyer was, in fact, swayed by the opinions of those who thought he should step down. The pressure has been anything but subtle.
In a Washington Post op-ed last May, a prominent law school dean urged Breyer to retire, allowing as to how there are times “when the stewards of our system must put the good of the institution they love, and of the country they love, above their own interests. They have to recognize that no one, not even a brilliant justice, is irreplaceable, and that the risks presented by remaining are more than hypothetical.”
This is one of many such narratives aired by those with an ideological stake in the game, who thought Breyer should retire sooner rather than later.
The late Ruth Bader Ginsberg was urged to retire during the Obama administration to assure Obama could fill the vacancy. She held fast, however, and her death during the Trump administration led to Trump’s appointment of Amy Coney Barrett, moving the court further to the right – a bitter pill for liberals who want to assure that doesn’t happen again.
Biden has committed to the appointment of a Black woman to the seat, which would be a first. Names of several possibilities have already surfaced, including that of one of Biden’s own appointments to a district court position.
Although it might not have been the Constitutional framers’ desires, the appointment of justices has become a highly politicized process.
Judicial purists, myself included, prefer to think of the high court as a solemn independent body, not influenced by political whims. During interviews or as part of speeches, sitting justices (including Breyer, who once said “law in general, I think, grows out of communities of people who have some problems they want to solve”), will underscore this idea.
But when a president has the opportunity to make an appointment, political maneuvering takes center stage.
Although there are those who believe it has always been this way, some modern historians believe it was Ronald Reagan’s 1987 nomination of Robert Bork (who was rejected by the Senate) to the high court that began the politicization of the process.
The yammering about the Breyer seat has already begun, with op-eds similar to the one I mentioned earlier, as well as tweets and statements from both sides.
The Dems are, of course, calling on Biden to take this opportunity to preserve the liberal contingency on the court. Others expect him to make good on his pledge to nominate a Black woman.
On the other side, Senate Majority Leader Mitch McConnel (R-Ky.) has warned the president not to “outsource” his appointment to the “radical left.” (As if?)
And our own Marsha Blackburn, a member of the Senate Judiciary Committee, said she will “not stand by as President Biden attempts to fill our courts with activist judges who are beholden to progressive interests.”
So, with Breyer’s announcement only days old, the posturing has begun.
But if McConnell and Blackburn want to slow the theatrics, they must reach the conclusion that, with the composition of the Senate as it currently stands, there is a high probability Biden’s nominee will make it through confirmation without a hitch.
Those are just the facts.
Bob McKinney is a longtime Brentwood resident, happy husband and proud father, father-in-law and grandfather. Email him at [email protected].