Though many on the far left have been clamoring for liberal Supreme Court Justice Stephen Breyer to announce his retirement by the end of the current term, the jurist’s decision to hire four clerks for the upcoming fall session has dealt a serious blow to those hopes, as the Washington Examiner reports.
Breyer, 82, has been the subject of an ongoing pressure campaign from progressive lawmakers and advocacy groups to retire in time for President Joe Biden to nominate an ideologically like-minded successor, and until now, he had given little indication as to his intentions. Hiring a full slate of law clerks for the next term, however, is viewed by many as a clear signal about his plans.
Desperate to avoid a repeat of the dilemma that resulted from the death of Justice Ruth Bader Ginsburg — who also famously resisted calls for a strategic retirement – which resulted in the confirmation of a nominee chosen by former President Donald Trump, far-left court watchers have all but demanded that Breyer step down.
If Breyer were to vacate his seat now, Biden would be able to select a nominee who would enter the confirmation process at a time when Democrats control – albeit very narrowly – the Senate. If, as many suspect, Republicans retake the upper chamber following the 2022 midterm elections, the path to confirmation of jurist chosen by Biden will likely become far more complicated.
As executive director of progressive advocacy group Demand Justice, Brian Fallon, explained the situation to NPR, if Sen. Mitch McConnell becomes majority leader again, “at worse, he might block any Biden pick. And at best, Biden is going to have to calibrate who he selects in order to get them through a Republican-held Senate,” making the timing that much more critical for liberals.
For his part, despite keeping his career plans close to the vest to date, Breyer has made public statements warning against hyper-politicization of the high court and the nomination process, saying earlier this year, “It is wrong to think of the Court as another political institution…and it is doubly wrong to think of its members as junior league politicians.”
As The Hill noted earlier this week, some court observers have suggested that the high-profile push from progressives to urge Breyer’s retirement could ultimately achieve the opposite effect, with legal blogger David Lat noting, “If you’re calling for him to retire, and then he retires, it looks like he caved to political pressure.”
“The people who are asking him to retire are generally people on the left who want him to be replaced by a younger, liberal justice, but in some ways, they’re making it less likely that he’ll retire by putting this pressure on him because he doesn’t want to be seen as somebody who is caving to partisan concerns,” Lat opined.
Indeed, as Lat also emphasized, it may well be that Breyer feels buoyed by a surprising emergence of consensus among his colleagues across a string of recent decisions, as well as justified in remaining on the bench for as long as he likes without risking the dire consequences for constitutional jurisprudence feared by the radical left.