Justice Breyer mum as some liberals urge him to retire
WASHINGTON — Forgive progressives who aren’t looking forward to the sequel of their personal “Nightmare on First Street,” a Supreme Courtsuccession story.
The original followed Justice Ruth Bader Ginsburg’s decision to forgo retirement from the high court, located on First Street in Washington, when Democrats controlled the White House and the Senate during six years of Barack Obama’s presidency, until 2015.
Despite some pointed warnings of what might happen, Justice Ginsburg remained on the bench until her death last year at age 87. President Donald Trump replaced the liberal icon with a young conservative, Justice Amy Coney Barrett, and cemented a 6-3 conservative majority on the court just over a month before he lost his bid for a second term.
In the updated version, 82year-old Justice Stephen Breyer plays the leading role. He is the oldest member of the court and has served over 26 years since his appointment byPresident Bill Clinton.
With spring comes the start of the period in which many justices have announced their retirement. Some progressives say it is time for Justice Breyer to go, without delay. Other liberal voices have said he should retire when the court finishes its work for the term, usually by early summer.
“He should announce his retirement immediately, effective upon the confirmation of his successor,” University of Colorado law professor Paul Campos wrote in The NewYork Times on Monday.
Mr. Campos’ plea stems from the Democrats’ tenuous hold on power.
Democratic President Joe Biden lives in the White House, and his party runs the evenly divided Senate only because the tie-breaking 51st vote belongs to Vice President Kamala Harris.
But there is no margin for a senator’s death or incapacitating illness that could instantly flip control to Republicans. Mr. Campos noted that the party composition of the Senate has changed more often than not in each twoyear session of Congress sincethe end of World War II.
Justice Breyer has remained mum about his plans, at least publicly. His last comment on the topic of retirement was made to Slate’s Dahlia Lithwick in an interview published in December. “I mean, eventually I’ll retire, sure I will,” he said. “And it’s hardto know exactly when.”
The justice, through a court spokeswoman, declined to comment for this story. Justice Breyer’s predecessors have tended to time their retirements so that they can be replaced by justices
with similar views of the law.
Some of those who asked Justice Ginsburg to retire also said Justice Breyer, five years younger than Justice Ginsburg, should have contemplated quitting then, too.
Mr. Biden already has pledged to name the first Black woman to the court, if he gets the chance. Among the names being circulated are California Supreme Court Justice Leondra Kruger, U.S. District Court Judge Ketanji Brown Jackson and U.S. District Court Judge Michelle Childs, a favorite of Rep. James Clyburn, D-S.C., who made a crucial endorsement of Mr. Biden just before that state’ s presidential primary last year.
Justice Breyer could announce his plans at any time — or say nothing and remain on the court. Justices
Harry Blackmun, David Souter and John Paul Stevens announced their plans in April or May; Justices Anthony Kennedy and Sandra Day O’Connor waited until early summer.
Justice Breyer’s departure wouldn’t do anything to change the conservatives’ 63 edge on the Supreme Court. Republicans firmed up and expanded conservative control of the court during Mr. Trump’s presidency.
First, they refused to consider Mr. Obama’s nomination of Merrick Garland after Justice Antonin Scalia died in 2016. Mr. Trump picked Justice Neil Gorsuch, 53, for the seat less than two weeks after he took office. Justice Kennedy’s retirement in 2018 and Justice Ginsburg’s death in September led to pitched confirmation
battles that ended with Justice Brett Kavanaugh, 56, and Justice Barrett, 49, on the court.
But while the ideological makeupwould stay the same, Justice Breyer’s retirement would allow Mr. Biden to rejuvenate the liberal side of the court, where Justice Sonia Sotomayor is 66 and JusticeElena Kagan is 60.
If Justice Breyer steps down, Clarence Thomas, 72, would be the oldest justice.
Justice Ginsburg maintained a steely — though ultimately mistaken — confidence that Democrats would retain the White House in 2016. She also doubted that Democrats could confirm someoneas progressive as she was under existing rules that allowed the minority party to block, or at least delay, SupremeCourt nominations.
“So who do you think could be nominated now that would get through the Senate that you would rather see on the court than me?” Justice Ginsburg asked rhetorically in an interview with The Associated Press in August 2014.
(In 2017, the GOP changed the rules to avert a Democratic filibuster of Justice Go rsuch’ s nomination .)
But in private, Justice Ginsburg did seek advice about retirement, Ohio State University law professor DeborahMerritt said Monday.
Justice Ginsburg asked Ms. Merritt, her one-time law clerk, what she thought about people suggesting she retire while Mr. Obama still held office “just in case the next president is not a Democrat,” Ms. Merritt said.
“Who the next president is, is our job, not your job. I think you should stay on the court as long as you can feel capable to do your job. The rest of us will do our job,” Ms. Merritt recalled telling the justice in a conversationin 2015.
Law clerks are perhaps the least likely people to tell judges they once served that it’s time to retire.
The topic provokes equally strong reactions from people who say it’s presumptuous to ask a justice to step down for political reasons and those who say it’s naive to do otherwise.