No Supreme Court Justice wants his legacy to be erased and his life’s work reversed. Justice Stephen Breyer is no exception. In an interview with the New York Times last August, he ventured that it was perfectly acceptable for a sitting Justice to time his retirement for purely political reasons.
Breyer had watched —likely with regret— as his close friend on the high court, Ruth Bader Ginsburg, rejected such considerations. When she died while still serving on the bench during a Republican presidency, the liberal justice was replaced by her polar opposite, Amy Coney Barrett. This further solidified conservative dominance of the court.
So, when word leaked on Wednesday that Breyer would retire at the end of this term in late June or early July, it was not all that surprising. His timing was politically propitious —intentionally so.
If Breyer was going to step away, it had to be soon. He is a highly intelligent man and a realist. He well knows there is a very good chance that in the coming mid-term elections this year, Democrats will lose control of the Senate which confirms Supreme Court Justices. The upper body of Congress currently resides in a tie of 50-50, with the Vice President casting the deciding vote as President of the Senate.
If Breyer waited until next year or thereafter, he would run the serious risk that Republicans in control would make it exceedingly difficult for Biden to place a nominee on the court who is the kind of liberal justice that Breyer would like to see as his own replacement.
When the last three conservative-oriented justices were nominated by President Trump, many Republicans insisted that the central question should always be whether the candidate is competent and qualified. Thus, as long as those two conditions are met by Biden in his selection of Breyer’s replacement, Republican Senators would be wise to abide by their own stated standards and not oppose the nominee. They should take the high road and decline to retaliate in kind.
It is a given that Biden will pick someone who is a reliable liberal and a progressive theorist in the mold of Breyer. However, it is worth remembering that this will not alter the current composition of the Supreme Court. Hence, Republicans should resist the temptation to oppose someone merely because of their politically influenced judicial philosophy.
Right or wrong, Biden promised repeatedly on the campaign trail that he would nominate to the high court a black female. Yes, he was trolling for votes which, sadly, is not uncommon in American elections. But there would be enormous fallout within the Democratic Party if he broke that promise now.
There are several highly qualified people believed to be on the so-called “shortlist” compiled by the White House. The most prominent is Katanji Brown Jackson, 51 years old, who sits on the U.S. Court of Appeals for the District of Columbia. She was confirmed by the Senate six months ago by a 53 to 44 vote. Before that she served as a federal district judge for eight years. Harvard educated for both college and law school, Jackson once clerked for Breyer. Her legal bona fides are impressive.
Leondra Kruger, 45 years old, is another top candidate. She has been a sitting Associate Justice on the California Supreme Court for the last seven years. Previously, she served as the Principal Deputy Solicitor General of the United States. A graduate of Harvard University, she received her law degree from Yale University. She clerked for Supreme Court Justice John Paul Stevens. She, too, appears quite qualified.
There are others on the list such as Juliana Michelle Childs, Leslie Abrams Gardner, Sherrilynn Ifill, and Melissa Murray, but their qualifications seem to pale when compared to Jackson and Kruger.
Whomever Biden selects, Republicans should tread carefully. They railed against Democrats during the contentious confirmation of Brett Kavanaugh, accusing them of blocking (and demonizing) a competent nominee with sterling credentials for purely partisan reasons. Republicans should not now do the same.
In an important election year, Democrats would love to weaponize a nomination battle for political gain. They will look for every opportunity to denigrate Republicans as racist and sexist, regardless of whether it is true.
In the age of identity politics, such smears can be a winning strategy at the ballot box.