The Breyer Retirement Could Help Democrats in 2022

January 26, 2022

The two women most often mentioned as replacements are Judge Ketanji Brown Jackson, a former Breyer Supreme Court clerk who in June was confirmed to join the U.S. Court of Appeals for the D.C. Circuit, and California Supreme Court Justice Leondra Kruger, a former Department of Justice official who has represented the government at the Supreme Court as deputy solicitor general.

Washington Post, January 26, 2022

US Supreme Court Justice Stephen Breyer is planning to retire. In my opinion, Breyer is doing the right thing in stepping down after this term (which will end in July). First, it's insane that we allow anyone an unelected lifetime term on a Supreme Court with just nine seats. Breyer, who is 83, has been on the Court since my first year in law school - and that was a long time ago; several years before my daughter, who is now approaching her mid-20s, was born. Since then, we've "elected" five different presidents.

Second, the Republicans have used bad faith and busted norms to place three right wing justices on the Court since 2016, even as the GOP president lost the popular vote and never had the support of a majority of Americans. Control of the Senate rests on one vote; should a Democratic Senator pass or retire, control of the Senate could flip from Democratic to Republican. If that happens, the GOP will never confirm a Biden appointment. We have the GOP track record to inform us on that one.

Third, there is good reason to be concerned about elderly persons making such important decisions on the Court. It's not because of their health - many of these folks are pretty sharp even into their 80s. It's because they often have no real idea - and certainly no experience - with what most young and middle aged people are experiencing in the daily lives today. This is not just about age; it's also about the bubble these judges live in (see my first point). Having people making important decisions that impact hundreds of millions of people with no accountability - never having to answer to the voters - for 30 years is not really the best idea the framers ever came up with. (To be fair, the framers probably never imagined that more than the occasional freak justice would live past 55.)

For the reasons above - but especially because of my second point - progressives have been calling for Breyer to retire since Biden was inaugurated. And before September 2021, that made sense. What happened then? California Governor Gavin Newsom survived a recall attempt in a landslide. What does this have to do with Breyer? Recall that the Senate has a 50-50 split. Also recall that California has a really dumb recall law that let's just about anyone replace a recalled governor even if that person gets millions fewer votes than the governor got. And finally recall that California has two Democratic senators, one of whom - Dianne Feinstein - is 88 and in ill health. It was plausible before September 2021 that Newsom could get recalled, a right wing Republican would replace him, Feinstein would step down from ill health (or worse), and the new governor would replace her with a Republican, giving the GOP control of the Senate. If that had happened, McConnell would again be Senate Majority Leader and refuse to even hold hearings on a Biden Court appointment (as he did in 2016 when Obama nominated Merrick Garland to the Court). But, once Newsom won this concern evaporated.

Breyer stepping down now is much better than him stepping down last year. He will retire in July, at which time the confirmation process will begin. A nominee may be announced before then, but the action will be over the summer. This means that there will be a confirmation battle during the mid-term election. It may be settled by September, but it will hang over the election. Should Biden do what he promised and is still expected to do - nominate a Black woman - that will help animate the Democratic electorate. We saw how Obama's failed attempt to appease Republicans with a centrist white male nominee backfired with Democratic enthusiasm in the 2016 election. Add in the Court overruling Roe v Wade at the end of the term, and this could be a boon for Democrats in the mid-term election. (The chance of getting rid of Roe has been a motivation for right wing voters for decades, but it will be over if the Court finally does it.)

Six months can be a lifetime in politics, but the safe money is on Biden nominated US Appeals Court Judge Ketanji Brown Jackson.