Breyer to Retire

Supreme Court Justice Stephen Breyer has announced his retirement.  Well, actually it was announced for him.  The nation had to wait a day or two  to hear from him.  Even President Biden has refrained from saying Breyer retired until the Justice made the confirming statement.

It is an unusual time for a Supreme Court Justice to announce a retirement.  They are still in the midst of the Court’s judicial season.  Retirements are usually offered when the high Court goes on summer vacation at the end of June.

Some have speculated that Breyer’s retirement wasn’t volunteered, but rather coerced by the premature announcement and pressure from the White House.  There may have been some political gamesmanship in forcing the announcement early.  He probably let folks know that he intended to retire after this session.

So, why would the insiders leak it?  Simple.  They want as much time before the 2022 Midterm Elections to start the replacement process.  A July announcement would give Biden and the Senate just four months to nominate and confirm a replacement.  They actually have until January 2023, but if the Republicans win the Senate and the House, it sets up a more difficult political reality.

Those on the left are peeing in their pants in excitement over getting a new – and younger – person on the Court.  It avoids their worst fear – that Breyer would hang in there and eventually retire or die with a Republican in the White House.

They seem to be anticipating a quick and easy confirmation.  But with a 50/50 split Senate, Biden will need every Democrat and Vice President Harris to break a tie.  However, they could get Republican votes – depending on who Biden nominates.

And no matter how fast Senate Majority Leader Chuck Schumer pushes for a quick confirmation, the new justice will not be seated until the next Court session in October.  Breyer will be finishing this session.

Based on the Senate’s modern tradition of advise and consent, whoever Biden nominates is going to be put through the political wringer.   She will be Bork-ed – the term coined after the Democrats’ brutal and disgusting attack on nominee Robert Bork.  It set the tone because it worked.  To be fair to the Senate, there have been nominees who gained wide support — Ruth Bader Ginsberg, being one of them.

Speaking of Harris.  I was pondering a commentary suggesting that Biden – and some Democrats — may want Harris out of the vice presidency before the end of his term.  An appointment to the Supreme Court is one way.  But she does not appear to be on the list of potential nominees.  I will get to why Biden may want Harris out before 2024 in a later commentary.

In terms of the make-up of the Court, Breyer’s stepping down is macht nichts.  It will not change the balance of the Court.  There will still be a six-to-three (mostly) conservative majority.

Perhaps the most interesting element in this story is the fact that Biden promised during the campaign that he would pick a black woman.  Some argue that making gender and skin color the primary consideration is too much of a bend to identity politics and political correctness.  But … it would not be the first time a presidential candidate made such a promise – and kept it.  Candidate Ronald Reagan promised to put the first woman on the high court – and kept that promise by nominating Justice Sandra Day O’Conner.

Biden said it and he is going to do it.  That is not to say that there are not a number of very qualified black women Democrats from which to choose.  Some more controversial than others, or course.

Breyer’s lame-duck status on the Court may be a disappointment to him, but the votes on the major issues are already firmly in the minds of the justices.  We only have to wait until they start rolling out their decisions according to timing and protocol.

The addition of a woman – black or otherwise – will mean that the Court will have more ladies on the bench than every before.  Of course, that is a statistic without any relevancy since judicial philosophy is what matters.  But I though I would mention it anyway.

For the next days or weeks, the press will be speculating over the ups and downs of the various candidates.  To some measure, they will be promoting their favorites.  At this point, the money is on Washington. D.C. Court of Appeals Judge Ketanji Brown Jackson.  I am not so sure.  She is arguably the most controversial and the least likely to get Republican votes– and may even lose a Democrat or two.  

If Biden wants to get all the Democrat senators and even some Republicans to make it bipartisan — he would fare better with California Supreme Court Justice Leondra Kruger or South Carolina US District Court Judge J. Michelle Childs.

The Biden White House will be testing names with key senators.  As he does, you can rest assured that there will be a lot of back-room politicking and bickering … a lot of leaked history on the potential nominees … and a lot of armchair speculation by the media.  

Finally, will placing a black woman on the Supreme Court improve Democrat chances in the 2022 Midterm Election, as many pundits claim?  I doubt it.

So, there ‘tis.

About Larry Horist