For another, it’s apt to be counterproductive. Justices are people, too; they can get their backs up when a “Breyer, retire” billboard truck starts circling their workplace. No justice wants his or her retirement to look politically motivated, even if nearly all justices these days have an eye on the occupant of the White House and try to match their departures to a president of their own party.
And when it comes to the subject of current retirement speculation, and pressure, it has seemed likely that Justice Stephen Breyer, at 82 the oldest justice, would do the right thing.
After all, precedents matter in Supreme Court retirements, too; justices learn from the mistakes of their predecessors. The word on the court was that Justice Sandra Day O’Connor left too soon, in order to care for her ailing husband, and turned out to regret her departure. Consequently, Justice Ruth Bader Ginsburg decided to roll the dice on her own health and a Hillary Clinton victory in 2016. (Ginsburg was also none too amused by comparatively gentle efforts to elbow her out of the way.) The result was a third Trump justice.
That legacy, or so I presumed, would influence Breyer not to make the same error. Maybe, although in the court-watching version of Kremlinology, the fact that Breyer hired a fourth clerk this spring, bringing his chambers to a full complement of assistants, was not a signal that this was a justice about to quit.
Which brings us to this week’s news, which is really no news at all: If Republicans regain the Senate majority, Minority Leader Mitch McConnell (Ky.) has now said that he will do everything within his power to prevent President Biden from filling any Supreme Court vacancy that arises.
On his radio show Monday, my colleague Hugh Hewitt asked McConnell if a Republican Senate would confirm a Biden nominee in 2024. “It’s highly unlikely,” McConnell said. But that wasn’t the most interesting statement. Anyone who watched McConnell steal a Supreme Court seat from Barack Obama and Merrick Garland knew he would happily do it all over again.
The real news was that McConnell didn’t rule out pulling the same stunt if a vacancy arose in 2023, with, say, 18 months left in Biden’s term. Would a Biden nominee — a “normal mainstream liberal”— “get a fair shot at a hearing,” Hewitt asked?
McConnell: “Well, we’d have to wait and see what happens.” Translation: Not if I have anything to say about it, but who knows whether I can keep all my troops in line. Depends whether my majority is big enough that I can afford to lose Sens. Lisa Murkowski (Alaska), Mitt Romney (Utah) or Susan Collins (Maine).
Note to Justice Breyer: This is not Ted Kennedy’s Senate, where you worked as his chief counsel on the Senate Judiciary Committee four decades ago. This is not the Senate that confirmed you 87-9 in 1994. Those kind of bipartisan votes on Supreme Court nominees are ancient history. That Senate is no more. “Talk to them” until you discover common ground — Kennedy’s approach for dealing with Republican colleagues, as Breyer related in a talk to students at the National Constitution Center last month — is great advice for high-schoolers learning to navigate the world. It doesn’t work with McConnell.
And that is why Breyer should retire at the end of the court’s current term, when there is ample time for the Democratic majority to confirm a successor. This is no easy choice. Next term has some blockbuster cases, including on guns and abortion, that Breyer might want to stick around for.
Meanwhile, he has seemed uneasy at the prospect of leaving on what looks like a political timetable, for fear of eroding — or further eroding — the public’s view of the judiciary as impartial and above politics.
“If the public sees judges as politicians in robes,” Breyer said in an April lecture at Harvard Law School, “its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power.”
Breyer’s concern is clearly heartfelt. The question he faces is, what is the best way to protect the court’s power? Is it to leave now, and have a successor confirmed in what has become the normal course of confirmation business — with a nearly party-line vote?
Or is it to take his chances and risk leaving a vacancy to the wiles of McConnell, who has already demonstrated he will stop at nothing to prevent a Democratic president from naming a justice.? Blocking another nomination would not only threaten to shift an already-conservative court even further to the right if Democrats lose the White House in 2024 — it would also trigger yet another cycle of partisan retribution in the never-ending confirmation wars.
Which outcome, Justice Breyer, would be better for the rule of law, and for the institution that you treasure?