Democratic control of the White House and Senate will put pressure on the Supreme Court’s oldest justice, Stephen G. Breyer, to step aside so that President-elect Joe Biden can choose his successor.
But that event — which resulted in President Trump naming a third justice to the court and solidifying a 6-3 conservative majority — along with the fragility of the Democrats’ one-vote control of the Senate, adds to the push on Breyer.
Erwin Chemerinsky, a liberal constitutional lawyer who is dean of the University of California at Berkeley law school, said he would urge Breyer to step aside soon. In a 2014 op-ed, Chemerinsky made the same argument to Ginsburg, who declined to retire when President Barack Obama was in office.
“Given the composition of the Senate — one unexpected change could cost the Democrats their majority — and the inherent uncertainty about the 2022 midterm election, Justice Breyer should consider stepping down when there is a Democratic President and a Democratic Senate to replace him,” Chemerinsky said in an email. “It is his best way of ensuring that someone with his values and his views takes his place.”
As soon as it was clear that Democrats won both Senate races in Georgia — giving Democrats 50 seats in the chamber and Vice President-elect Kamala D. Harris the tie-breaking vote — the liberal group Demand Justice also said Breyer should consider exiting.
“Justice Breyer has had a tremendous career,” said Christopher Kang, the group’s chief counsel. He said Breyer should appreciate the “poetic possibility” of stepping aside so that Biden could nominate the first Black woman to the court, as he pledged during the campaign.
Even before the Georgia results, Breyer faced questions about when he would leave the court.
He was gingerly asked by MSNBC host Ari Melber in October, during a session for the Edward M. Kennedy Institute for the United States Senate, whether “justices do or should think about who will replace them, and their retirement process while they are on the court?”
“Of course from time to time you think about it,” Breyer replied. “It’s part of the aging process. It’s inevitable.”
But he continued that it was a dangerous topic, because of the politics involved.
“The more the political fray is hot and intense, the more we stay out of it,” Breyer said, adding “the decisions we’re making are decisions for 330 million Americans . . . so the people on both sides have to have the confidence that you, the judge, is a fair person.”
But such “thank-you-for-your-service” nudges come with a job that carries a lifetime appointment. Even though Trump had already named two justices, some in the legal conservative movement were not subtle this summer in speculating that Thomas, 72, or Justice Samuel A. Alito Jr., 70, might retire so that Trump could put a younger conservative stamp on the court.
The relative youthfulness of the president’s nominees — Justices Neil M. Gorsuch, 53, Brett M. Kavanaugh, 55, and 48-year-old Amy Coney Barrett — is one factor liberals cite in hoping to reinforce their allies on the court with a younger member.
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As much as they assert their independence, many justices feel a pull to retire when the party of the president who nominated them is in power, or when the president is inclined to name a like-minded successor.
Scott Lemieux, a political scientist at the University of Washington, said that in the last half-century, “strategic retirements have been more the rule than the exception.”
“The only justices since 1968 who resigned while still alive and with a president they weren’t positively disposed to on ideological or partisan grounds were [William J.] Brennan and Thurgood Marshall, who waited as long as they could during a 12-year run of Republican control of the White House” before resigning for health issues, Lemieux wrote in a Washington Post op-ed.
In an interview, Lemieux noted that Obama’s choices for the court replaced liberal-leaning Republicans David H. Souter and John Paul Stevens. He chose Sonia Sotomayor, now 66, and Elena Kagan, now 60.
The two justices chosen by Clinton — Ginsburg and Breyer — resisted calls to step down.
In a 2013 interview with The Post, the then-80-year-old Ginsburg predicted that Obama’s successor would be a Democrat. “The Democrats do fine in presidential elections; their problem is they can’t get out the vote in the midterm elections,” she said.
Noting the poisonous political atmosphere a year later, she said in an interview with the Associated Press: “So who do you think could be nominated now that would get through the Senate that you would rather see on the court than me?”
Ginsburg had hoped to stay on the court through the Trump presidency, but she died of cancer in September, which led to Barrett’s confirmation in the days before the election.
Breyer has not had similar health concerns, and gave up his bicycle after a series of accidents that resulted in broken bones. Friends and former clerks say he loves the job, and the justice is something of a happy warrior on the court, enjoying the company of even the justices with whom he disagrees, such as longtime seatmate Thomas.
Because of the uncertainty of the confirmation process, some have suggested he could make his retirement contingent on the nomination and confirmation of a successor, as Justice Sandra Day O’Connor did in 2005.
The most recent justice to retire from the court, Anthony M. Kennedy, did not, but he was pretty certain confirmation would happen. Trump administration officials made Kennedy, then in his early 80s, comfortable with giving up his seat.
The president’s first choice for the court, Gorsuch, was a former Kennedy clerk. After that, Kennedy himself suggested Kavanaugh be added to the list of possibilities, and he was named as Kennedy’s replacement when he retired in 2018.
Biden said he would name a Black woman to the court, and the two women mentioned most prominently are California Supreme Court Justice Leondra Kruger, who argued before the Supreme Court as deputy solicitor general in the Obama administration, and U.S. District Judge Ketanji Brown Jackson, whom Obama considered for the high court.
Jackson was one of Breyer’s clerks at the Supreme Court. There is also speculation she would be in line for U.S. Judge Merrick Garland’s seat on the U.S. Court of Appeals for the District of Columbia Circuit should Garland be confirmed as attorney general.
Breyer is the ninth-oldest justice in the Supreme Court’s history, recently passing Justice Louis Brandeis. In a recent interview with Dahlia Lithwick for a series on Slate.com called the “80 most influential Americans over 80,” Breyer said, “I mean, eventually I’ll retire, sure I will. And it’s hard to know exactly when.”
Asked if society was sometimes too quick to move people out of their jobs, he answered, “I’ve thought sometimes that one virtue of China is they really respect old people.”
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