The Breyer Patch
The 83-year-old Justice is playing a dangerous game.
I find myself bemused at CNN‘s report “Democrats walk on eggshells around Breyer as GOP plans another blockade for any Biden Supreme Court pick.”
Senate Republicans are poised to deny President Joe Biden an appointment to the Supreme Court if they take the majority in the 2022 midterm elections.
Five Republican senators raised the stakes around Justice Stephen Breyer’s retirement, telling CNN they’d oppose any likely nominee out of this White House.
But Democrats in the Senate and the White House, though they’ve come off the November elections more worried in recent weeks about a potential wipeout in the midterms, are still avoiding calling directly for Breyer to quit, fearing that it would backfire and encourage the 83-year-old to stay on the bench.
Breyer has told several people who’ve made unofficial efforts to push him to retire that he thinks the confirmation process shouldn’t be political, according to people told of those discussions, and Democrats worry he’d remain as an act of resistance to show he’s not bowing to politics.
Still, top Democrats across Washington would like Breyer to announce he’s going even before the end of the court term in June, so they can get moving on confirmation hearings well before the midterms. More than the political calendar is on their minds — with their 50-50 margin and several aging Senate Democrats coming from states with Republican governors, they head into the new year fearing that their control of the chamber could collapse at any moment.
Privately, multiple Senate Democrats complain that Breyer seems to have let his ego overtake him and he is not being realistic to how radically Supreme Court confirmation politics has changed in the last five years.
Publicly, they continue to approach Breyer gingerly. Asked if the 50-50 Senate divide, the health of his colleagues and Breyer’s own health should accelerate the justice’s timeline, Sen. Sheldon Whitehouse chose his words carefully, noting that he’d deliberately avoided calling for Breyer’s retirement.
“I would hope,” the Rhode Island Democrat finally said, “the choice and its consequences are apparent to the justice.”
And the White House is stuck in the middle, with the President adamant that Breyer should get to make his own decision.
Biden has so far avoided the kind of pressure that Barack Obama tried to exert on Ruth Bader Ginsburg in 2013, when the President hosted the aging justice at the White House for lunch to nudge her toward the exit. But in the West Wing and among civil rights leaders, the frustration is about more than just a Supreme Court seat: every day that Breyer remains on the bench is a day that Biden isn’t able to fulfill his campaign pledge to nominate the first Black woman to the Supreme Court.
In an ideal world, Breyer is of course right. If he’s healthy, energetic, and still possessed of his full mental capacity, there’s no reason he can’t continue serving at 83. And timing retirements so that a President of a given political party can nominate replacements absolutely contributes to the sense that the Supreme Court is a political body, thus undermining its legitimacy.
But, of course, we don’t live in an ideal world. The fight over nominations to the Court has been increasingly partisan going back to at least the days of the Robert Bork nomination in 1987 and the Republican gambit to deny Obama the right to fill the vacancy caused by the death of Justice Antonin Scalia in 2016 took it to a nuclear level and the race to replace Justice Ruth Bader Ginsburg ahead of the 2020 elections rubbed salt in the wound. Unilateral disarmament on the part of Democrats would be foolish under the circumstances.
And, yes, it’s rather obvious that no Biden nominee to the Court would be confirmed in a Republican-controlled Senate. To the extent one sees the Garland gambit as hewing to principle rather than naked power politics, the same logic would hold in January 2022 as in February 2016: an intervening election has demonstrated that the American people want the opposition party to thwart the policies of the President. If one buys that logic—which I find rather silly, given the undemocratic nature of the Senate—then the fact that there are two years remaining in the President’s term rather than it being an election year is really irrelevant.
If Democrats want to keep that seat in the hands of a Democratic appointee, then they need to hope Breyer retires very soon or lives long enough for the confluence of a Democratic President and Democratic Senate comes to pass again.