Justice Stephen Breyer just did Joe Biden and Senate Democrats a favor by announcing his retirement in January

·5 min read
Justice Stephen Breyer
Justice Stephen BreyerErin Schaff-Pool/Getty Images
  • Breyer's retirement decision gives Democrats months to confirm a Biden pick before the midterms.

  • Progressives had pressured Breyer to step down while Democrats hold control of the Senate.

  • Senate Democrats have already shown an eagerness to move quickly to confirm Biden's choice.

Joe Biden had been president for just three months, but Demand Justice was anxious.

The influential, courts-focused progressive organization wanted Supreme Court Justice Stephen Breyer to step away so Biden could fill the seat with someone younger who could serve for decades to come.

So Demand Justice on April 9, 2021, marked the 11-year anniversary of the late Justice John Paul Stevens' retirement announcement by launching a "Breyer Retire" campaign and dispatching a black-and-neon-green billboard truck emblazoned with the message "BREYER, RETIRE" to circle the Supreme Court .

But Breyer stayed put. His apparent intransigence frustrated progressives — and even some of his own past clerks — who wanted him to step down ahead of what is expected to be a difficult midterm election for Democrats.

There will be no similar heartburn among progressives as the 2021-22 Supreme Court term nears its end. By making his retirement plans clear in January, Breyer has maximized Biden's chances of getting a Supreme Court nominee confirmed by an evenly-divided, but Democrat-controlled Senate, according to Democrats and others familiar with the Senate confirmation process.

In the recent history of the Supreme Court, retirement announcements have come closer to the summertime end of the term. Justice David Souter announced his retirement in early May 2009, Stevens revealed his plans to step down in April 2010, and Justice Anthony Kennedy waited until June 2018.

Breyer "leaves a legacy on the court of both a progressive ideology but also a pragmatism, and his voice will be missed. I'm sad to see him go, but I think for those that have watched the Senate work, I am not surprised that he chose now to retire," said former US Sen. Doug Jones, an Alabama Democrat whom Biden considered for attorney general.

"Hopefully, the president will have a nominee ready to go so there will be more time, because I do believe regardless of who is nominated, there needs to be a full and fair vetting of this nominee by the Senate and the public," Jones added.

From 2017 to 2020, former President Donald Trump filled three Supreme Court seats and tilted the court's ideological balance toward the right.

But only one seat opened through retirement.

President Joe Biden at his first press conference of 2022.
President Joe Biden.Chip Somodevilla/Getty Images

Biden's only nomination?

That retirement, at the close of the Supreme Court term in June 2018, involved Kennedy, then the court's most moderate — and often unpredictable — member. Just weeks later, Trump nominated now-Justice Brett Kavanaugh, whose confirmation process was marked by allegations of past sexual misconduct. Kavanaugh was confirmed in a 50-48 vote in October 2018, a month before that year's midterm elections, when Republicans were in power. He's since proven to be a reliable conservative vote on the court.

Trump's two other Supreme Court appointees, Justices Neil Gorsuch and Amy Coney Barrett, filled seats that were opened by the deaths of the late Justices Antonin Scalia and Ruth Bader Ginsburg, respectively.

With Breyer's retirement decision coming so early in the year, Biden can avoid a confirmation process that will run up against the midterm elections, which could cost Democrats their delicate majority in the Senate and derail future court appointments.

The Democrats' delicate hold on the Senate has created headaches for Biden, who has seen his agenda stymied by two lawmakers in particular — Sens. Joe Manchin and Kyrsten Sinema — who have refused to create a carveout in the filibuster to pass a voting rights bill.

But Democrats have been united on Biden's court picks. Notably, Sinema, Manchin, and even Republican Sens. Susan Collins, Lindsey Graham, and Lisa Murkowski voted to confirm Judge Ketanji Brown Jackson last year to the US Court of Appeals for the DC Circuit. Jackson, a former Breyer clerk, is considered a leading contender for the nomination.

It's entirely possible that this will be Biden's only shot to nominate a Supreme Court justice, particularly if he only serves one term. With Breyer's departure, conservative Justice Clarence Thomas, now 73 years old, will become the oldest member of the Supreme Court. The other justices range in age from Barrett, 49, to Samuel Alito Jr., 71.

Biden was reluctant to comment Wednesday on the widespread news coverage of Breyer's retirement decision, noting that the justice had not formally made an announcement.

But White House press secretary Jen Psaki said Biden "certainly stands by" his vow on the campaign trail to nominate a Black woman to the high court, and other Democrats expressed an eagerness to fill Breyer's seat. NBC reported that Biden learned of Breyer's decision in the middle of last week and that the White House is ramping up a quick search process for the justice's successor.

Sen. Dick Durbin, the top Democrat on the Senate Judiciary Committee, said Breyer's departure will give Biden the "opportunity to nominate someone who will bring diversity, experience, and an evenhanded approach to the administration of justice.

"I look forward to moving the president's nominee expeditiously through the committee," he said.

In a statement Wednesday, Senate Majority Leader Chuck Schumer said, "President Biden's Supreme Court nominee will receive a prompt hearing in the Senate Judiciary Committee and be considered and confirmed by the full United States Senate with all deliberate speed."

Reuters reported that Senate Democrats plan to confirm Breyer in the same one-month timetable that Republicans used to confirm Barrett just ahead of the 2020 election.

Demand Justice said it was a "relief" that Biden will have an opportunity to appoint a new Supreme Court justice while Democrats still control the Senate.

"Justice Breyer's retirement is coming not a moment too soon," the group said, "but now we must make sure our party remains united in support of confirming his successor."

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