Some liberals urge Breyer to leave Supreme Court
WASHINGTON – Forgive progressives who aren’t looking forward to the sequel of their personal “Nightmare on First Street,” a Supreme Court succession 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, 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, 82-year-old Justice Stephen Breyer plays the leading role. He is the oldest member of the court and has served more than 26 years since his appointment by President 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 Breyer to go, without delay. Other liberal voices have said Breyer 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 New York Times on Monday.
Campos’ plea stems from the Democrats’ tenuous hold on power.
A Democrat, 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. Campos noted that the party composition of the Senate has changed more often than not in each two-year session of Congress since the end of World War II.
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,” Breyer said. “And it’s hard to know exactly when.”
The justice, through a court spokeswoman, declined to comment for this story. 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 Ginsburg to retire also said Breyer, five years younger than Ginsburg, should have contemplated quitting, too.
Biden 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. She is a favorite of Rep. James Clyburn, D-S.C., who made a crucial endorsement of Biden just before the state’s presidential primary last year.
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.
Breyer’s departure wouldn’t do anything to change the conservatives’ 6-3 edge on the Supreme Court. Republicans firmed up and expanded conservative control of the court during Trump’s presidency.
If Breyer steps down, Clarence Thomas, 72, would be the court’s oldest justice.