Another day, and more unsolicited advice for Justice Stephen G. Breyer.
It is similar to a call liberal interests groups made this week, saying in an ad in Politico that “for the good of the country, now is the time to step aside.”
The pressure is unprecedented, if not new. As soon as Biden was elected, liberals began calling on the 82-year-old Breyer to retire, and his decision will be as closely watched as any of the opinions the court hands down as it completes its work this month.
Supreme Court justices are adept at not giving hints about their plans, often not even informing their colleagues until just before an announcement. But Breyer has given no indication he is ready to leave.
He has reportedly hired a full contingent of clerks for the term that begins in October, although that could be a matter of keeping options open rather than reflecting a decision.
But the group Demand Justice, which has spearheaded the pressure efforts, said Senate Minority Leader Mitch McConnell (R-Ky.) has provided new urgency with his comments in an interview.
McConnell told conservative radio host Hugh Hewitt there was almost no chance a Republican-controlled Senate would consider a Biden nominee in the presidential election year of 2024, and that it might not even consider one nominated in 2023.
“Would they get a fair shot at a hearing — not a radical but a normal, mainstream liberal?” Hewitt asked.
“Well, we’d have to wait and see what happens,” McConnell responded, before shifting to praise Breyer for making it “clear that court-packing is a terrible idea.”
Biden, when asked about McConnell’s remarks as he left Geneva following his summit with Russian President Vladimir Putin, said: “Mitch has been nothing but no for a long time. And I’m sure he means exactly what he says, but we’ll see.”
Demand Justice’s executive director, Brian Fallon, said McConnell’s position should send alarms.
“Anyone who still doubted that Stephen Breyer not retiring could end in disaster should pay attention to Mitch McConnell’s recent comments,” Fallon said.
Democratic members of Congress have also begun gently suggesting they would welcome a Breyer retirement. Although the midterm elections in 2022 provide the best chance for Republicans to retake control of the Senate, the death of a single Democratic senator before then would create political turmoil.
Democrats are aware of McConnell’s power as well as the gamble that Justice Ruth Bader Ginsburg made during the Obama administration, when she dismissed far less coordinated calls that she step down with a Democrat in the White House.
Within weeks of Ginsburg’s death in September 2016, McConnell marshaled Republican senators to approve her ideological opposite, Amy Coney Barrett, before President Donald Trump lost reelection.
Barrett’s nomination secured a 6-to-3 conservative majority on the court. Replacing Breyer would not change that dynamic, but it would ensure that the court continues to have three liberals for the foreseeable future. Biden has said he will nominate an African American woman if he has a chance.
Breyer is the oldest member of the court but energetic in oral arguments, and he has replaced Ginsburg as the justice most open to giving speeches and interviews. He recently told a group of students that he exercises regularly on a stationary bike and has taken up meditation.
He is the justice who most often preaches the virtues of compromise and may feel his skills will be needed next term, when the conservative court has already said it will take up gun rights and an abortion rights case that could serve as a challenge to Roe v. Wade.
But in their ad, the academics, some of whom have already called on Breyer to retire, said the stakes were too high.
“Breyer is a remarkable jurist, but with future control of a closely Senate uncertain, it is best for the country that President Biden have the opportunity to nominate a successor without delay,” the ad says.