With the latest term of the Supreme Court having come to a close last week, Democrats appear anxious to know whether the Court’s current oldest justice, Stephen Breyer, plans to step down, a move that would allow them to confirm a replacement named by President Joe Biden in the near future.
The anxiety is perhaps warranted, as Democrats do not want to see yet another Supreme Court seat fall to a judge nominated by a Republican president, especially after the death last fall of Justice Ruth Bader Ginsburg enabled former President Donald Trump the opportunity to further cement the right-wing ideological composition of the High Court.
Breyer is one of only three liberal members remaining on the nation’s highest Court.
Writing to his fellow Democrats in a “Dear Colleague” letter on Friday, Senate Majority Leader Chuck Schumer (D-New York) emphasized that he and other lawmakers were ready to confirm judicial appointments named by Biden in the coming months — including within the Supreme Court.
Schumer did not mention Breyer by name in his comments, but it’s widely assumed that he was referring to the justice, who is 82 years old and the oldest member of the liberal bloc of justices.
“The Senate will continue to confirm more of President Biden’s highly qualified judicial nominees,” Schumer wrote, adding that, “As always, Senate Democrats stand ready to expeditiously fill any potential vacancies on the Supreme Court should they arise.”
Breyer hasn’t yet indicated whether he intends to remain on the Court or retire. He has time to do so, and his waiting for a few weeks after the Supreme Court term ends isn’t without precedent, as Anthony Kennedy, who retired in 2018, did so in late July of that year.
Still, with what happened in 2020 still fresh on the minds of Democrats, and with the narrow 50-50 lead they have in the Senate (with Vice President Kamala Harris casting tie-breaking votes, including those on judicial appointments), many are stressing the need for Breyer to make up his mind soon.
MSNBC’s Mehdi Hasan excoriated Breyer late last week, after the justice hadn’t announced his retirement at the end of the Court’s term.
“Stephen Breyer didn’t retire yesterday,” Hasan wrote on Twitter. “Of course he didn’t, because like too many centrist Establishment liberal white folks in this country, he doesn’t think there really is a threat to democracy or minority rights, and even if he accepts there is, he ain’t gonna suffer from it.”
Paul Campos, a professor of law of the University of Colorado in Boulder, also pilloried Breyer’s indecision on the matter, calling him “selfish.”
With how the Court has been politicized in recent years, many have suggested that reforms to how justices are selected, and even how many seats should be on the bench altogether, need to be implemented. Earlier this year, however, Breyer himself indicated he was against such changes, stating that it’s “wrong to think of the court as another political institution.”
A number of legal scholars have rejected this view, calling it naive.
“These appointments come up so rarely and are not regularized so we have no idea when these opportunities will come up unless justices act strategically and retire under the same party president,” said Amanda Hollis-Brusky, an associate professor of politics at Pomona College, in comments to The Washington Post.
Schumer’s letter comes one day after a report from the Project on Government Oversight (POGO) that detailed potential reforms to the Supreme Court that could be implemented in order to lessen the politicization and direness of each appointment process to the bench, such as tenure limits for how long justices could serve and screening committees to determine who should be nominated.