WASHINGTON, DC – APRIL 21: Associate Justice of the Supreme Court Stephen Breyer participates in a panel on “Lessons from the Past for the Future of Human Rights: A Conversation” at the Gewirz Student Center on the campus of Georgetown University Law Center on April 21 April 2014 in Washington, DC. Organized by the legal center, the New York Review of Books and the Bingham Center for the Rule of Law, the forum focused on the future of human rights. Photo: Chip Somodevilla/Getty Images
Supreme Court Justice Stephen Breyer, one of the Court’s three liberal justices, is retiring at the end of his current term in June, setting off what promises to be an epic fight for his replacement.
Liberal groups have been calling for Breyer to step down since Joe Biden became president because Democrats still have a chance to replace him with a like-minded judge. Breyer had resisted the pressure, expressing a belief that the Court was above political considerations.
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At 83, Breyer is the Court’s oldest judge. He assumed that title when fellow liberal Ruth Bader Ginsburg died just before the 2020 election. (Her death enabled Donald Trump to push through the nomination of Amy Coney Barrett.) Nominated by Bill Clinton, Breyer is on the bench for 27 years.
Breyer’s retirement means Biden will simply have the opportunity to preserve the minority the liberals have on the court, instead of eroding it further. Currently, Breyer, Sonia Sotomayor and Elena Kagan are the only three members of the Court who consistently support LGBTQ rights and other liberal issues.
Breyer’s timing is very problematic. Had he retired at the end of the Court’s term last year, Biden would have had a clearer path to push through a Senate nominee. His polls were higher, the midterm elections were still more than a year away, and the Democrats were moderately united, despite their wafer-thin margin. (As a reminder, the Senate is split 50-50 between the parties, with Vice President Kamala Harris as the deciding vote.)
Today, the political landscape is totally different. The shine has faded from Biden’s presidency, thanks to inflation and the omicron surge. Republicans will resurrect the same bogus reasoning they used to block Merrick Garland’s Supreme Court nomination: no nominees in an election year. (That reasoning didn’t apply to their pick, Barrett, who was confirmed weeks before a presidential election.)
Then there are the Democrats themselves. “Democrats in disarray” is an eternal theme, but it’s especially true right now. Thanks to Sen. Joe Manchin (D-WV) and especially Sen. Kyrsten Sinema (D-AZ), the Biden agenda is on the rocks and tensions among Senate Democrats are particularly high. Sinema revels in being a kind of cactus version of former Alaska Governor Sarah Palin (right), running thugs and pissing off her co-workers.
Getting Biden’s nominee through the confirmation process will require Democrats to act in unison, and that’s precisely the kind of scenario Sinema likes to disrupt. The next few months will be high-stakes political theater.