Breyer to retire, giving Biden first Supreme Court pick of his presidency

Asked about Breyer’s reported decision to retire, Senate Minority Leader Mitch McConnell (R-Ky.) made only cursory comments Wednesday during an event in Bowling Green, Ky., focused on the response to the December tornado outbreak.

McConnell said he planned to wait for an official announcement before commenting further. “I'm afraid to put the cart before the horse,” he said. “Justice Breyer has not yet made an official announcement. He's entitled to do that whenever he chooses to, and when he does that I'll have a response on his long and distinguished career.”

Asked whether Senate Republicans planned to try to block Biden’s nominee, McConnell declined to say.

“We don’t know who the nominee is yet, so that’s [a decision] the president has an opportunity to make should there be a vacancy. And Justice Breyer will determine when and if there’s a vacancy,” he said.

McConnell led a Republican blockade of President Barack Obama’s final Supreme Court nominee, Merrick Garland, in 2016. Now, however, Democrats have a Senate majority, and if they stay united they will be able to overcome Republican opposition.

Senate Majority Leader Charles E. Schumer (D-N.Y.) vowed that Biden’s nominee to replace Breyer will receive a swift confirmation from the Senate.

“President Biden’s nominee will receive a prompt hearing in the Senate Judiciary Committee, and will be considered and confirmed by the full United States Senate with all deliberate speed,” Schumer said in a statement.

Schumer also lauded Breyer’s career, calling him a “model jurist.”

“For virtually his entire adult life, including a quarter century on the U.S. Supreme Court, Stephen G. Breyer has served his country with the highest possible distinction,” Schumer said. “He is, and always has been, a model jurist. He embodies the best qualities and highest ideals of American justice: knowledge, wisdom, fairness, humility, restraint.”

The New York Democrat said Breyer’s decisions on “the biggest issues of our time,” including women’s reproductive freedom, voting rights and the Affordable Care Act, “were hugely consequential.”

“America owes Justice Breyer an enormous debt of gratitude,” Schumer said.

Later, in remarks in New York, Schumer said, “during the campaign, President Biden stated that he would choose a black woman as his choice for the Supreme Court, and I expect he’ll follow through on that.''

He added that Democrats will expedite consideration of the nominee. “We want to be deliberate. We want to move quickly. We want to get this done as soon as possible.”

Democrats will be able to confirm Biden’s Supreme Court nominee by a simple majority, thanks to Senate Minority Leader Mitch McConnell (R-Ky.), who in 2017 invoked the “nuclear option,” changing chamber rules to secure Neil M. Gorsuch’s seat.

At the time, Democrats filibustered Gorsuch’s nomination after Republicans warded off President Barack Obama’s nomination of Merrick Garland for the job. McConnell dismissed the Democrats’s objections, arguing that changing the rules to allow a confirmation by a simple majority was just going “back to what was the tradition in the Senate.”

Some Republicans opposed the move, including Sen. John McCain of Arizona, who saw it as the next step in the slide to crushing the chamber’s bipartisan traditions.

McConnell went through with it. Ultimately, President Donald Trump seated three justices this way — Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.

While it was McConnell who changed the rules to allow for a simple vote on Supreme Court nominations, it was the Sen. Harry M. Reid (D-Nev.), during his time as majority leader in 2013, who first invoked the “nuclear option” to eliminate the 60-vote rule as he sought to confirm a slate of presidential nominations. Reid, however, stated that the rule change would not be applied to Supreme Court nominations.

And while McConnell in 2013 said Reid would “regret” his decision, Reid never did. In September, three months before his death, he said he was proud of it.

McConnell appears to have no regrets, either. He has, after all, successfully instituted one of the most conservative Supreme Courts in history.

Republicans running for Congress had mixed reactions to Breyer’s expected retirement, from regret that the GOP wasn’t in a position to block Biden’s eventual nominee, to speculation that he would use the vacancy to solve a political problem.

“Folks, this is why elections are so important,” tweeted Rep. Mike Bost (R-Ill.). “If we had a GOP controlled Senate, they would be able to stop Biden from stacking liberals on the SCOTUS.”

Few candidates suggested that Republicans, who have 50 seats in the Senate but have been unable to block Biden’s lower court nominees, should work to block a Breyer replacement. More frequently, they cited the potential of future court openings as a reason to elect Republicans who would refuse to advance Biden nominees.

“This isn’t the time to send a squishy establishment RINO to Washington to sit back and sing kumbaya with Democrats and allow Joe Biden to appoint another justice like [Elena] Kagan or [Sonia] Sotomayor,” tweeted Josh Mandel, a Republican running for U.S. Senate in Ohio.

While most speculation on a pick focused on a Black woman in light of Biden’s campaign promise, some candidates used the news to mock liberals, saying they were too obsessed with diversity.

“Watch, Biden’s gonna nominate RuPaul to SCOTUS and you’ll be expected to take it seriously,” tweeted Blake Masters, a tech CFO running for U.S. Senate in Arizona. “The left will agitate for the most insane activist possible who has all the most fashionable identity characteristics.”

Sen. Joe Manchin III (D-W.Va.) on Wednesday praised Breyer’s tenure and said he would evaluate Biden’s nominee to succeed the justice.

“Justice Breyer has dedicated much of his life to upholding the rule of law and we are grateful for his service. I wish him a happy and fulfilling retirement,” Manchin said in a brief statement.

“I take my Constitutional responsibility to advise and consent on a nominee to the Supreme Court very seriously. I look forward to meeting with and evaluating the qualifications of President Biden’s nominee to fill this Supreme Court vacancy,” he added.

Manchin has consistently backed Biden’s judicial nominees, thus helping the president fill vacancies with more left-leaning judges in his first year in office than any recent Democratic president. But the lawmaker has resisted elements of Biden’s legislative agenda, including his sweeping proposal on education, child care and climate.

Manchin has an opportunity to help Biden replace Breyer with a justice who will reinforce the court’s liberal minority while Democrats have narrow control of the Senate.

Longtime civil rights activist Al Sharpton on Wednesday urged Biden to follow through on his campaign-trail pledge to nominate a Black woman to the Supreme Court.

“We are looking for promises made to be promises kept,” Sharpton said in a statement. “There are many Black women in the judicial system more than qualified to be nominated.”

Sharpton also said that he and his organization, the National Action Network, “will be on high alert” to ensure Senate Minority Leader Mitch McConnell (R-Ky.) does not try to block Biden’s nominee “as he successfully blocked President Barack Obama’s nomination of Judge Merrick Garland.”

“This opportunity presents a critical choice given that affirmative action, voting rights, and other key issues are before this court,” Sharpton said.

In part because of how conservative the Supreme Court leans, and in part because of the timing, Breyer’s retirement probably won’t change much about the trajectory of the Supreme Court’s decisions on abortion rights, at least in the short term.

Breyer hasn’t officially announced his retirement, but court observers expect that he will leave his job before the court starts its new term this fall.

This summer, the Supreme Court is expected to announce its decision in a Mississippi abortion case that could reshape abortion laws in the United States. That means Breyer — a reliably liberal vote — will be a part of that decision.

But the court is also just beginning the process of thinking about what it will hear next term. And it just announced it’s going to hear a case asking whether universities can use affirmative action to accept new students — another long-held target of conservatives. That case will probably be heard by a Supreme Court with Breyer’s successor. Affirmative action tends to benefit Black and Hispanic applicants, and Biden has promised to nominate a Black woman to the court — an unusually frank promise by a president. The court is also expected to hear in its next term a major case on climate change.

The planned retirement of Justice Stephen G. Breyer this year puts a renewed spotlight on a small circle of Black female jurists who are positioned to be chosen as President Biden’s first pick to the Supreme Court, potentially marking a historic step in the country’s history.

That shortlist, which could grow, is topped by Judge Ketanji Brown Jackson, who was confirmed last year to the U.S. Court of Appeals for the D.C. Circuit as one of Biden’s first judicial nominees. Brown is a favorite of the Democrats’ liberal base, in part because of her history as a former public defender, an unusual background for a Supreme Court justice.

Another strong candidate is Leondra Kruger, a California Supreme Court justice who has previously rebuffed offers from the White House to take a job in the administration.

And a confirmation hearing slated for next week will put the spotlight on yet another Black woman who is being catapulted into the vacancy discussion: J. Michelle Childs, a federal judge and favorite of House Majority Whip James E. Clyburn (D-S.C.). Childs seized the attention of legal observers when Biden unexpectedly nominated her last month to serve on the high-profile D.C. circuit, surprising Washington-area lawyers who had anticipated a pick with local ties.