Senator Richard Blumenthal (D-Conn.) Said he “would never claim to tell a Supreme Court justice to retire”, but that Breyer himself “is very well aware of the potential risks that a president may face. republican appoints his successor ”.
“He is familiar with how judicial appointments work, and I firmly believe he has the best interests of the country in mind and will make the right decision,” said Blumenthal, member of the Judicial Committee. “There are political realities that I hope the judges will perceive.”
A single Senate vacancy could put the future of the Biden-era High Court in limbo, given Democrats’ slim 50-50 majority. Yet despite this risk and the obvious consequences of Ginsburg’s decision to stay after 2014, Supreme Court retirements remain a third rail in Democratic politics – at least publicly.
Many party senators have declined to predict whether or not a judge will step down this year, although they are keenly aware of the stakes in Breyer’s decision-making process after seeing Senate Republicans take three Supreme Court seats in just four. years.
“It stands to reason that if you care at all about the balance of power in the Supreme Court, you should not hang on until the very last moment,” a Democratic senator said of Breyer. “He should take advantage of his retirement and allow us to recruit a talented young lawyer who can serve for decades.”
This Democratic majority is five seats lower than in 2014, with an active progressive base pushing the party to wage legal battles as bare as those of the GOP. Brian Fallon, executive director of liberal justice group Demand Justice, said the reality of Breyer’s future – as the oldest member of the High Court in a decade – means “people have to stop being sheepish. on this subject”.
“The longer it goes without Breyer having said he intends to resign at the end of this term, the more reckless he is,” Fallon said. “Mitch McConnell was not above Directly calling on judges to urge them to retire last year, so senators should not be so reluctant to state the obvious of what is at risk if Breyer does not take this opportunity to resign.
Democratic senators are aware of this dynamic even as they approach Breyer as they did in Ginsburg seven years ago. Senator Sheldon Whitehouse (DR.I.) speculated that “it is not clear that we will avoid a repeat” of the past.
“We’re still worried about this. And it’s unpredictable, ”said Senate Judiciary Dick Durbin (D-Ill.).
There is a precedent for Senate speculation about vacancies at the federal level, including the Supreme Court. In March 2018, then-Sen. Dean Heller (R-Nev.) Correctly predicted that Judge Anthony Kennedy, a decisive vote, would retire that summer, while Sen. Chuck Grassley (R-Iowa) urged would-be retirees to act quickly. Kennedy was 81 when he resigned.
Ginsburg acknowledged the pressure she faced to retire, especially during Barack Obama’s second term in the White House – and even had lunch with the then president in 2013, when he would have expressed fears that Democrats could lose the Senate. But in a 2014 interview with Reuters, Ginsburg asked, “Tell me who the president might have named this spring that you’d rather see on court than me?”
While Biden does not explicitly pressure Breyer to retire, he at least has a professional connection to justice, having helped confirm Breyer in 1994 as chairman of the Senate Judiciary Committee. But Biden too had a brief discussion with the nominee that year, calling Breyer’s analysis of American cultural values ”elitist.”
Since the Ginsburg seat was occupied by Conservative judge Amy Coney Barrett, activists are taking a more aggressive stance with Breyer. Cliff Albright, co-founder of Black Voters Matter, and Rachel O’Leary Carmona, executive director of Women’s March, have said Breyer must step down before midterm 2022.
“We think it’s time for him to retire,” said O’Leary Carmona. “What he can do to solidify his career as a women’s champion is … step down and make sure that much of the progress he has helped women achieve through court victories does not. be not lost.
If Republicans take control of the Senate in 2022, she added, progressives fear that “Mitch McConnell will do anything and everything he can to prevent a justice that supports women’s rights from being upheld.”
Albright, whose group is mobilizing voters in Southern states, said Breyer’s replacement was “not even a chance to balance the court,” but simply an opportunity to solidify his current balance with a younger judge. .
“We don’t want to end up with the same situation we faced with Judge Ginsburg,” he said. “If you are someone who cares about voting rights, you have to care about the future of the Supreme Court. This is the most immediate potential vacancy affecting this future. “
And while not all social justice groups explicitly call on Breyer to retire, their leaders hope he considers the tribunal’s ability to preserve a legacy it has helped build on issues such as civil rights. .
“A judge’s decision to retire is deeply personal but must take into account the long-term impact on what justice has stood for,” said National Urban League president Marc Morial, highlighting the record. de Breyer in matters of race and civil rights. “We hope that justice will weigh the impact of its choices on maintaining this legacy on the future Supreme Court.”
The growing conversation about Breyer’s potential retirement comes as Democrats continue to scramble over whether to attempt Supreme Court reform, responding to a gradual push for changes as profound as expansion. Breyer himself recently cautioned against the idea for fear it would further damage public confidence in the institution, but it doesn’t silence some Democrats who want an overhaul. Senator Ed Markey (D-Mass.) Said that despite Breyer’s views, “we should act to expand the Supreme Court. This is my position.
The White House last week deployed a bipartisan commission to study potential changes to the Supreme Court, and during his campaign, Biden pledged to appoint a black woman to the country’s highest office if there is a vacancy.
The three Supreme Court confirmations during Trump’s presidency crescendo towards full partisanship, with Barrett not receiving a single Democratic vote. So if Breyer steps down and gives Biden a chance to make his mark on the pitch in the months to come, Democrats hope to put a different stamp.
“I expect that if there is a vacancy, President Biden will come up with a name where there can be bipartisan support,” said Senator Mazie Hirono (D-Hawaii). “Trying to get people into the Supreme Court with purely Republican or Democratic votes is not helpful to this court.”