NBC News’ Pete Williams had the scoop of the day. He was the first to break the news that Supreme Court Justice Stephen Breyer will retire after 27 years on the court. He’ll step down when the Supreme Court term ends in June.
At 83, the liberal Breyer is the Supreme Court’s oldest justice. Democrats and other liberals have publicly pressured Breyer to step down while there is a Democratic president and while Democrats have control of the Senate, which confirms Supreme Court nominees. When he was campaigning for president, Joe Biden said, given the chance, he would nominate a Black woman to the court.
The Washington Post’s Robert Barnes wrote, “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 Justice Department official who has represented the government at the Supreme Court as deputy solicitor general.”
However, Barnes added, “Others will surely be added to the list, and Biden will likely cast a wide net. There are few Black women on the federal appellate court bench, the traditional spot from which Supreme Court nominees are chosen.”
NPR’s Nina Totenberg wrote, “Breyer’s decision to retire is a relief to liberal Democrats after seeing Republicans push through three Trump nominees using some unprecedented tactics. Indeed last year, some liberal groups publicly pressed Breyer to retire, even demonstrating in front of the Supreme Court. The Justice, however, demurred.”
Breyer told NPR in an interview last September that he didn’t want to stay on the court until he died.
The New York Times’ Adam Liptak wrote, “He insisted that politics played no role in the court’s work, devoting a recent book to the subject. After the death of Justice Ruth Bader Ginsburg in 2020, when he became the court’s senior liberal, he may have hoped to find common ground with his more conservative colleagues. But there was little evidence of that in recent months. In cases on abortion, immigration and the Biden administration’s responses to the coronavirus pandemic, he repeatedly found himself in dissent.”
Despite nearly three decades on the Supreme Court, Liptak noted that Breyer doesn’t have a high profile. Liptak wrote, “Though he made frequent public appearances in all sorts of settings, he was far less prominent than some of his more colorful colleagues. He routinely came in last in public opinion surveys in which respondents were asked to name the justices. In a Marquette Law School poll released this month, only 21 percent of Americans said they were able to express an opinion about him, the lowest for any member of the court.”
During an interview with MSNBC’s Hallie Jackson, Massachusetts Democratic Sen. Elizabeth Warren said, “Justice Breyer has been an extraordinary public servant. And he's been a wonderful justice. … So, we're going to miss him. But it is also an opportunity to bring in someone new. And I'm delighted that President Biden will be standing by his pledge to bring in an African American woman. I think it's terrific. It's a new day for the court, and I'm really happy about it.”
What does it all mean?
Breyer’s retirement won’t shift the balance of the Supreme Court, at least not for the foreseeable future. Even if (when) Biden gets his next nominee through, conservatives will still hold a 6-3 advantage.
As The Washington Post’s Aaron Blake writes, “Replacing Breyer, 83, wouldn’t change that 6-3 deficit, but it would prevent it from getting worse if Republicans retake the Senate this November and/or the presidency in 2024.”
This isn’t, however, just about the current court, but the future one. The leading names to replace Breyer — Ketanji Brown Jackson and Leondra Kruger — are still young. Jackson is 51. Kruger is 45.
Blake writes, “That means, should the court stay at nine members, there will be significantly fewer vacancies to fill in the coming years and decades, and each will take on added importance — making their timing even more important, as well. The three vacancies Trump was able to fill in just four years (in part thanks to Mich McConnell’s gamesmanship in 2016) was already a historical aberration; it’s likely to be even more so moving forward.”
The more immediate question is how quickly Democrats will move to replace Breyer.
The New York Times’ Luke Broadwater and Emily Cochrane wrote, “Just how fast can the process move? That’s mostly up to three men: Mr. Biden, who must nominate a new justice; Senator Richard J. Durbin, Democrat of Illinois, who as Judiciary Committee chairman will shepherd the nominee through that panel; and Senator Chuck Schumer, Democrat of New York and the majority leader, who controls the floor. Mr. Schumer wants the entire process to take weeks, not months, according to a person familiar with his thinking who spoke about it on the condition of anonymity.”
The Times story does a good job explaining how it could all work.
We shouldn’t be surprised …
I normally wouldn’t give much thought to anything Tomi Lahren says, but her comment about a Black woman possibly replacing Breyer on the Supreme Court is drawing some well-deserved criticism.
While appearing on Fox News’ “Outnumbered,” Lahren told host Harris Faulkner, “We know what Joe Biden does best is placate to the radical element and radical progressive base of his party that he believes is the majority. I believe he’s incorrect and I believe that they are actually the minority. But I’m wondering the kind of justice that he would nominate. Now again I’m sure it would be, as (guest host) Guy (Benson) said, a Black woman, he’s got a dedication to that. We saw how well that worked out with Kamala Harris. But here’s to hoping he had a better choice in mind for this position.”
Mediaite’s Colby Hall wrote, “The charitable interpretation of Lahren’s comments is that she meant to say that nominating someone strictly because of their race can end up with the wrong person for the job, and many on the right feel that Vice President Harris has been underwhelming. But a reasonable interpretation would also see Lahren’s comments as unnecessarily racial in nature, if not just flat out racist, suggesting that a Black woman named to the highest court would simply not be up for the task.”
Yeah, I’m in the “reasonable interpretation” camp.
Hey hey, my my
