A Supremely Timed Retirement
Supreme Court Justice Stephen Breyer is Hanging Up His Robe
Justice Stephen Breyer, the 83-year-old dean of the Supreme Court's liberal bloc made the announcement that he is retiring after serving more than 27 years on the nation's highest court. A moderate liberal, Breyer wrote many of the court's legally important decisions and sought to build consensus for centrist decisions on a conservative court. During his retirement announcement at the White House, he quoted the Gettysburg Address and said he had hope in the future of the experiment of US democracy.
What does Breyer’s retirement mean for the Court and country?
Justice Breyer's choice to retire now means that President Biden will have the opportunity to seat at least one Supreme Court justice during his term as president.
The Court has shifted dramatically over the last decade, beginning with the loss of Justice Scalia and the subsequent theft of Barack Obama's ability to even get his nominee a hearing, and then the passing of Ruth Bader Ginsburg. It ended with the appointment of Donald Trump's three justices -- Kavanaugh, Gorsuch, and Coney-Barrett. The tectonic shift in Constitutional idealism will impact our lives and our children's lives for a long time.
President Biden's new appointment is a chance to tip the scales back toward the middle, or to a place I pretend exists called "an independent judiciary." At the minimum, he has the opportunity to fulfill a campaign promise and make history by nominating the first black woman to the highest court in the land. Assuming he follows through on this, the next justice will add much needed representation to the bench.
Why Now?
With the midterms looming in 2022, and the country more divided than ever, both media and pundits believe the Senate majority will swing back to the Republican party. Justice Breyer choosing to retire this year gives ample time for a nominee to be confirmed by the Senate. Many believe RBG should have done the same to allow President Obama to choose her replacement. However, we saw what happened when Obama tried to replace Justice Scalia, so without a crystal ball to know that the Republican party would make the unprecedented move they made with Merrick Garland’s nomination, it's unreasonable to think anyone could have predicted the place we landed following Scalia's passing, much less several years prior. Neither could we know just how deep the black hole would go in the years following.
Now that we, as a country, know what we know, it’s a good move for Breyer to give Biden a chance to seat a new justice.
Can the next nomination be blocked by Mitch McConnell?
The answer I'd like to give: No way, no how, can't happen!
One important note is Breyer's explicit comments in his retirement letter where he states his intention to retire will take effect if his successor has been nominated and confirmed. This means there will be no empty seat for Republicans to hold hostage if Breyer is conditioning his retirement on a confirmed successor.
But as we've seen time and again since losing Scalia, Senate Minority Leader Mitch McConnell and the Republican party will stop at nothing to maintain power and get what they want. [This is actually an objectively accurate statement at this point in time.].
The Republicans did away with the filibuster for Supreme Court nominations so the vote threshold is now only 51. This helped when Republicans held the majority in seating three justices. This also means as long as the entire Democratic caucus, or a few Republicans, vote yes to the nominee to get to 50 votes, Vice President Kamala Harris will be the tie-breaker.
The potential deal-breaking wildcards are certain Senate Democrats who, over the last year, have been willing to sabotage policies supported by the majority of Americans which helped the party win in the 2020 election. In this instance, it will hopefully not be an issue. Biden will likely have talks with these members of his caucus before selecting a nominee. Though that does nothing to solve the issue that one or two senators can wield so much power over legislative outcomes, it is how it works in Washington to reach compromises to get things done, like judicial appointments.
Additionally, there may be other rules within the Senate committees and their processes that can be manipulated to the GOP's advantage, but the Democrats in the majority should be enough, in theory, for this to get done before the Senate switches hands (if it switches hands - nothing is certain and I will not contribute to the belief that this is a foregone conclusion).
This is an open question and there is only one way to find out the answer.
Later this week, I will share information on the potential nominees to replace Justice Breyer, and what the immediate next steps will be for President Biden.
Do you have questions about Breyer’s retirement, his potential replacement, the future of the Supreme Court, or the process in general? Submit your questions in the comment section below and we’ll feature a post soon with the answers!