Thank You Justice Breyer

[ Posted Wednesday, January 26th, 2022 – 15:46 UTC ]

Supreme Court Justice Stephen Breyer has unofficially announced his impending retirement from the highest court in the land. He deserves thanks from all Democrats for doing so. By making this announcement now, Breyer has shown he has learned the lesson of Ruth Bader Ginsburg's death. And since it was such an important and painful lesson, it's gratifying to see Breyer now put the interests of the court itself above his own. For that, he deserves gratitude.

Supreme Court justices, of course, serve for life. They choose when they want to step down, there is no mandatory retirement age, and many of them die while still serving. That's the way the Constitution set it up. But because of the increasing polarization and politicization of the court, a retirement is now always announced while the party that closest aligns with the justice's viewpoint is in control of the nomination process. This preserves whatever ideological balance the court has, obviously. The only shifts to this balance of power happen due to unexpected deaths.

Supreme Court justices tend to hang onto their jobs far past when they should really step down, these days. And with people living longer in general (compared to earlier in American history), this means they can hit incredibly advanced ages before they decide to hang up their spurs. It's easy to see why -- if you were sitting in the most powerful position you'd ever had in your life, and if there was absolutely nothing stopping you from continuing the most important work you had ever done in your entire career, why would you step down on someone else's timetable? What are you going to do in retirement that would even remotely make up for the lost importance and power? So on a human level, it's easy to see why they hang on so long.

Democrats haven't really paid as much political attention to not only the Supreme Court but all the lower courts as well. Few Democratic voters even mention it as one of the issues they care about the most. That is not true on the other side of the aisle, due to a concerted and very organized push to tilt the court's ideology to the conservative side that dates back to the days of Ronald Reagan. This multi-decade project has now almost reached its intended culmination: the overturning (or complete gutting) of Roe v. Wade. That could happen later this year, and with the court now 6-3 conservative, it likely will happen. And all of that effort -- back to the 1980s -- will have paid off.

It took Democrats being robbed of the chance to shift the court from 5-4 conservative to 5-4 liberal to even begin paying attention to the fact that the president nominates justices and the Senate confirms them, and therefore that this should be an important consideration when voting.

Just imagine if we were now in President Hillary Clinton's second term. Mitch McConnell's gambit of holding up a nominee in the last year of President Obama's term wouldn't have worked. He likely would have been shamed into allowing Merrick Garland to be confirmed to the high court. Garland is not exactly a hardcore liberal, after all.

Justice Anthony Kennedy may have chosen not to retire during Clinton's presidency. Or perhaps he might have retired only after getting Clinton and McConnell to come to a handshake agreement that the only acceptable nominee would be a solid "swing vote" judge. Either way, it wouldn't have altered the makeup of the court all that much.

Ruth Bader Ginsburg may have decided to retire too, with Clinton at the helm. But if she didn't and died right before the 2020 election, then McConnell definitely would have blocked any nomination from going forward. Then, in January, Chuck Schumer and the new Democratic majority would have confirmed Clinton's pick. Again, ideologically, this wouldn't have changed anything, since a solid liberal would have been confirmed.

Now, one year into her second term, President Clinton would be deciding upon a nominee to replace Breyer.

That's how important the Supreme Court nominating process is. And it seems like Democrats have finally reached and fully understood the ramifications of this conclusion. That's why Justice Breyer stepping down now is a big win for them.

President Joe Biden will now get a chance to make good on his campaign promise to nominate a Black woman to the highest bench in the land. Whomever he chooses, she will be the first Black woman -- and only the third Black justice -- ever. It will be historic.

Of course, after the past year, the fear that somehow Senator Joe Manchin or Kyrsten Sinema might screw this up for Biden immediately springs to mind. But that's doubtful -- Manchin has so far been a very reliable vote for all Biden's judicial nominees. Voting on a Supreme Court justice doesn't require changing Senate rules, so that shouldn't even be an issue.

Chuck Schumer and other Democrats are already pointedly reminding Senate Republicans how fast they hustled through the previous nominee, so we can likely expect a quick confirmation process. In a few months or so, the Senate will vote and fill the vacancy with Biden's choice. The Republicans won't be able to stop them.

This will be a big political victory both for Biden himself and for Senate Democrats. Biden has been feeling some serious heat from Black voters and activists over how he has not been fully involved with the voting rights issue until very recently, and over the continued failure of this effort in the Senate. Black voters are feeling more than a little disillusioned with Biden, after being the core constituency that got him the Democratic nomination in the first place and then secured his election later on. Naming a Black justice to the Supreme Court might go a long way towards giving Black voters an inspirational reason to continue voting for Democrats. It certainly couldn't hurt. And the Senate proving that it can indeed do big things even when they are totally partisan might also help Democrats with the millions of other base voters who are feeling demoralized with the pace of action in Congress.

Which is why I'll end this where I began. Democrats everywhere truly do need to join in the chorus, and thank Justice Stephen Breyer for his decision to step down now, when he can reliably be replaced by a justice of similar ideological outlook.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


6 Comments on “Thank You Justice Breyer”

  1. [1] 
    Elizabeth Miller wrote:

    I knew Justice Bryer would do the right thing for the Court. And, hopefully, he has done the right thing in time!

  2. [2] 
    Elizabeth Miller wrote:

    Biden will be naming a Black justice who is also a woman!

  3. [3] 
    Elizabeth Miller wrote:

    If Manchin and/or Sinema find a way to screw this up, it may not even matter.

    I mean, there may be a couple or three Republicans who will vote to confirm her.

    Hey, stranger things have already happened.

    And, you know, I actually hope it happens that way.

  4. [4] 
    Elizabeth Miller wrote:

    It took Democrats being robbed of the chance to shift the court from 5-4 conservative to 5-4 liberal to even begin paying attention to the fact that the president nominates justices and the Senate confirms them, and therefore that this should be an important consideration when voting.

    It's still hard to believe it took all of that and that long for Democrats to understand this.

    But, then again, I have been following Biden's career since 1987 and so I have always known how important the phrase "elections have consequences" is and that goes double for Supreme Court nominations.

    Biden has been stressing the importance of presidential nominations to the Supreme Court for fifty years!

  5. [5] 
    C. R. Stucki wrote:

    If He's able to find one, I expect a black female transsexual Muslim political liberal married to a gay male transsexual Legal qualifications wont even enter the discussion.

  6. [6] 
    MtnCaddy wrote:


    You're right. Just because Cheetogod nominated unqualified (per the ABA) candidates and got them confirmed doesn't mean the Dems should likewise ignore legal qualifications.

    Although I recognize your concern that our Supreme Court is getting dangerously low on white males.

Comments for this article are closed.