In what could be interpreted as a nudge to liberal Supreme Court Justice Stephen Breyer to step down this summer, Senate Majority Leader Chuck Schumer (D-NY) told his fellow Democrats the upper chamber to be ready to act swiftly on any vacancies that could arise at the high court, according to The Hill.
Speaking to a host of issues he hopes to tackle in the coming weeks, Schumer declared in a “Dear Colleague” letter, “Alongside these crucial legislative priorities, the Senate will continue to confirm more of President Biden’s highly qualified judicial nominees. …We will continue this critical work in the months to come. As always, Senate Democrats stand ready to expeditiously fill any potential vacancies on the Supreme Court should they arise.”
Though Schumer did not specifically reference Breyer in his communication, court watchers suspect that simply raising the specter of a potential vacancy was a move designed to convey a message to the 82-year-old jurist, who has been the target of retirement demands from progressive lawmakers and advocates alike who want Biden to nominate his successor.
No news has yet emerged to suggest that a vacancy at the high court is imminent, but Breyer has faced growing pressure from far-left voices to leave the bench now to eliminate the risk of repeating what many view as the error committed by the late Justice Ruth Bader Ginsburg declined to retire during the Obama administration and inadvertently left the choice of her replacement to former President Donald Trump.
Legal scholar Dan Kobil explained the left’s angst on the issue earlier this year, saying, “I’m sure Breyer realizes what a blow Justice Ginsburg’s non-retirement was to the possibility of ever having an even mildly progressive Court in our lifetime. So I think he would not want to double down on what many view as her miscalculation.”
Were Breyer to depart the bench now, Biden’s pick would be able to enter the nomination cycle at time when Democrats still retain narrow control of the Senate. However, if Republicans reclaim control of the chamber in 2022, the path to confirmation would become much tougher for the sort of jurist progressives want.
Liberal judicial reform group Demand Justice has been extremely outspoken in calling for Breyer’s departure, with its executive director, Brian Fallon, saying earlier this year, “People need to stop being sheepish about this. The longer that goes by without word from Breyer that he intends to step down…the more reckless it is.”
Clearly concerned about the possibility of a GOP wave in the 2022 midterms, Fallon has also noted that if Sen. Mitch McConnell (R-KY) returns to the majority leader role, “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.”
While Schumer stands at the ready and is prepared to leap at the opportunity to fill a SCOTUS vacancy, the recent news that Justice Breyer has already hired a full slate of law clerks for the fall term appears to be the strongest signal yet that he has no intention of caving to partisan pressure and will serve in his current role for as long as he chooses to do so.