The Breyer Patch

The 83-year-old Justice is playing a dangerous game.

Justice Stephen Breyer
Elizabeth Gillis/NPR

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.

FILED UNDER: Law and the Courts, Supreme Court, US Politics, , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Sleeping Dog says:

    A good case can be made that if Breyer believes that the politics over SC appointments hasn’t changed dramatically in the last six years, even allowing for your observation that this began in the 80’s. Then you need to wonder if he is still maintains the mental capacity to remain on the court.

    So yes, his ego is large.

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  2. Kathy says:

    That’s another problem with lifetime terms. The Court packs a lot of power in a very small package. Some pópele simply can’t give it up.

  3. Scott F. says:

    Call me an ageist, but Breyer could be head of the local school board and I’d want him forcibly retired at 83 yrs.

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  4. ptfe says:

    Lifetime appointments are a terrible idea. SCOTUS justices should have a finite span over which to exert influence. The fact that one of these guys was posted 5 presidents ago (less than a month after the end of the Gulf War! before national media had even heard of Bill Clinton! before Windows 3.1!) is disturbing.

    High court appointments could and should be capped in various ways (2 per presidential term, life or 20 years, expand the court by 6 and make an old-timer B squad, etc) to prevent just the kind of regression we’ve got on the court right now.

    There’s no reason Insurrectionist T should have any appointees anywhere near the reins of power come 2030, let alone the possibility of 3 all the way out to 2050 and beyond. Surely there’s a format that works better than the current setup.

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  5. I saw Breyer in Colbert a few months ago. He came across as naive, like all you need to know about US government can be learned by Schoolhouse Rock or the like. No doubt a good bit of that is ego as well.

    And let me state that it drives me crazy to talk about SCOTUS as not being “political”–it has always been political because it has enormous political power.

    I realize that a lot people use “political” to mean “partisan” but even there, the Court has always been partisan–we have always talked about whether Justices are “liberal” or “conservative” and know full well who appointed them.

    And yes, presidents and Senate majorities have gotten more strategic about these appointments, but let’s please not pretend that the Court was ever not political. (It is that kind of fantasy that allows Breyer to rationalize as he is).

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  6. And yes, lifetime appointments are a horrible idea, and there should be a mandatory retirement age for these positions.

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  7. In re: the courts and politics. Note that Marbury v. Madison in 1803 (!) was about judicial appointments.

    It has always been political.

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  8. KM says:

    “Lifetime appointment” meant something a lot shorter back when the Founders were around. Remember “life” was shorter then, functional and effective “life” even shorter. We confuse existence with life since we can use medicine and science to extend existence to 120+ but most people start losing the mental acuity political life requires well before that.

    The idea of 90+ year olds running most of the government for the foreseeable future was *NOT* something they would have wanted. They wanted the wisdom that supposedly comes from age to temper the foolishness of youth, not rampant senility or doddering dullards in control for generations.

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  9. Just nutha ignint cracker says:

    he thinks the confirmation process shouldn’t be political

    What the confirmation process should be is immaterial; what the confirmation process is matters above all other considerations.

    And I agree that the process shouldn’t be political, but it started being political early on in my life and that shift has made all the difference–as well as bringing us to the mess that the nation is now.

  10. JKB says:

    I see all the concerns about age and tenure over a Supreme Court Justice, one of nine, but none over all US research into infectious diseases being essentially controlled by one man 81 yrs old in 4 days for the last 37 years. Does anyone really believe private funding can be found for research Anthony Fauci disapproves of as director of NIAID? And Fauci joined NIAID four years before the Tuskegee Syphilis “Experiment” was ended, as his job and only employer in his professional life.

  11. Just nutha ignint cracker says:

    @Just nutha ignint cracker: Correction for clarification: In light of Dr. Taylor’s observations above (which I hadn’t read before posting), I should have used the term “partisan”–which I think is also what Breyer meant with what he said.

  12. Matthew Bernius says:

    @Steven L. Taylor:

    And yes, presidents and Senate majorities have gotten more strategic about these appointments, but let’s please not pretend that the Court was ever not political. (It is that kind of fantasy that allows Breyer to rationalize as he is).

    This. And for as much as certain folks seem to always point to Bork what broke the court, there are lots of other examples of politics coming into play–including Nixon forcing one justice off the court and trying to get a second justice removed through impeachment.

    https://verdict.justia.com/2014/07/25/nixons-uses-abuses-muses-supreme-court

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  13. Just nutha ignint cracker says:

    @JKB: Wow! Hyperbolize much?

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  14. Gustopher says:

    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.

    We can also hope he drops dead quickly. That seems like the most likely and easiest scenario.

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  15. Andy says:

    Just logically, it’s highly unlikely that Breyer would have any desire to make a retirement decision appear to be for strategically partisan reasons, nor is it likely that he would want to appear to cave to the demands of activist liberals who, as the case may be, want him to either retire or die. With friends like these….

    So I think the assumptions that ego or naivete is in play here are probably wrong.

    In other words, the notion that he would publicly admit that the court is political, and that selections are political or should be, or that he is going to deliberately time his retirement (or not) based on partisan control of the WH and Senate, is, IMO, clearly against his interests. Maybe I’ve missed it somewhere, but I don’t know of any lifetime appointed judge, much less on the SCOTUS, that has done that except for Ginsberg, who only said it on her deathbed.

    The lawyers over at Volokh Conspiracy, for example, have been tracking announced retirements in the lower courts, and comparing numbers year-over-year and also based on whether they were left or right and who nominated them. None of these judges are coming out and saying they are retiring because the right party is in control of the WH and Senate, yet the statistics indicate that is true for a lot of lower-court judges.

    The idea that Breyer would not repeat the usual talking points about the supposed independence and non-partisan nature of the judiciary is what is weird. Breyer is acting as the vast majority of judges do in not revealing his hand.

    The fact is that we don’t know what Breyer thinks except that he seems to take, like his fellow justices, the legitimacy of the court very seriously. Those who want him gone to be replaced by Democrats ought to, from a tactical perspective, take that view seriously and not force a situation where the retirement would be seen as nakedly political or partisan. Wishing that he would die or calling him names does not seem like a good strategy to achieving that stated goal.

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  16. Sleeping Dog says:

    @Andy:

    That would be all well and good, if next year the Dems were assured of control of the senate. If the R’s gain control of the Senate, assuredly McConnell or his successor, won’t approve a Biden nominee.

    Also, recall that McConnell and other R’s encouraged older R judges to retire in the past few years so they could be replaced by younger ones. So yes, resigning when the party of the prez who appointed you is in power has a long established tradition.

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  17. @JKB:

    but none over all US research into infectious diseases being essentially controlled by one man 81 yrs old in 4 days for the last 37 years.

    Setting aside the amount of work that “essentially controlled” is doing here, are you advocating for a mandatory retirement age for judges and civil servants?

    I am not sure you are going to get a ton of push-back on that–or are you just trying to score what you think are clever points about Fauci (who has one helluva a lot less power and significance than does Breyer)?

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  18. wr says:

    @JKB: Hey JKB — I’m bored. Amuse me by saying something stupid!

    Oh, wait, too late…

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  19. Kathy says:

    @Andy:

    Breyer can think whatever he wants about the court. But the fact remains the emperor has no clothes.

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  20. gVOR08 says:

    @Andy

    except that he seems to take, like his fellow justices, the legitimacy of the court very seriously.

    Roberts has made some modest, exceptionally modest, efforts toward maintaining legitimacy. I’m thinking off just barely supporting Obamacare against gutting the VRA. What have the other Federalists done to maintain legitimacy? Alito and Barrett have recently demanded we grant unconditional legitimacy. Otherwise? They want respect, they should do something respectable.

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  21. Matt says:

    @Diamond Girl: In the last 90 years there’s only been a handful of occasions where the party of the president didn’t lose seats in the house or senate. Only three times has the party of the president actually picked up seats…

    So historically it’s highly unlikely that the Democratic party is going to pick up seats.

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  22. wr says:

    @Diamond Girl: “Trying to game the system before a crushing electoral defeat would seem less important than trying to avoid or lessen that defeat in the first place.”

    Yes, because the two are mutually exclusive because… oh, wait, since you are so much wiser than everyone here, perhaps you could explain this.