Saying it was the “responsible thing for them to do,” Kennedy argued in an essay for The New Republic that the 70-year-olds – both of whom were nominated by Bill Clinton – should step aside so that Democratic President Barack Obama can appoint young Liberals to replace them. to life seats at the highest court in the land.
Neither of them answered the call. Last year, Ginsburg passed away at the age of 87 and her seat was taken by Donald Trump just days before the November presidential election with Amy Coney Barrett tipping the nine-member scale 6-3 in favor of the conservatives.
Now, with Democrats in the White House and controlling the Senate by the smallest of fringes, Breyer, 82, faces new demands to resign after nearly 27 years in the field.
As the Supreme Court nears the end of his term, he has been the target of a fierce public pressure campaign that presents political challenges for President Joe Biden as progressives worry about a court ruling supreme dominated by conservatives over everything from voting rights and guns to discrimination and abortion.
“We’ve seen the tragic consequences of rolling the dice, and it just can’t happen again,” said Tré Easton of the progressive group Battle Born Collective. “The GOP does not claim that the tribunal is this apolitical institution, nor can the left, the progressives, the Democrats, claim that it is apolitical. “
Those calls escalated this week after Mitch McConnell, the top Senate Republican, suggested he would block a candidate Biden if his party took control of the upper house midway through next year. The judges of the Supreme Court are chosen by the presidents but must be confirmed by a simple majority in the Senate.
McConnell refused to accept Obama’s appointment of Merrick Garland to fill the vacant post created by the death of Tory Antonin Scalia in 2016, clearing the way for Trump to choose Neil Gorsuch instead.
McConnell’s latest comments sparked outrage from progressives. “Anyone who still doubted that Stephen Breyer would not retire could end in disaster should pay attention to Mitch McConnell,” said Brian Fallon, executive director of the left-wing group Demand Justice.
Fallon’s group ran a “Retired Breyer” campaign, running an advertising campaign and renting a truck of billboards to drive around the courthouse with the message, “Breyer, retire. It’s time for a black woman to judge the Supreme Court. There’s no time to lose.
Some jurists have joined us, including Erwin Chemerinsky, dean of the University of California at the Berkley School of Law, who wrote in a Washington Post op-ed last month that Breyer should “learn from the judge’s mistake. Ginsburg ”and withdraw now, warning,“ With a 50-50 Senate, anything is possible ”.
Biden has vowed to appoint the first black woman to court if there is a vacancy. Widely regarded as one of the favorites, Ketanji Brown Jackson was confirmed earlier this week by the Senate to sit on Washington DC’s prominent federal appeals court.
A retirement from Breyer could be one of the only opportunities for Biden to appoint a Supreme Court judge in the near future, barring unexpected developments. Clarence Thomas, a declared Tory appointed in 1991, is the second oldest on the bench – and Breyer’s 10-year youngest.
Trump had the rare opportunity to fill three vacancies during his four-year tenure, following the deaths of Scalia and Ginsburg and the retirement of Anthony Kennedy. Like many Republican lawmakers, he campaigned on the promise of a conservative court to woo grassroots Republican voters who care deeply about issues such as guns and abortion.
Biden, meanwhile, has largely avoided getting directly into court-related matters, although earlier this year he set up a bipartisan commission to consider reforms, including the addition of more judges from the court. the Supreme Court.
Asked in April about the president’s views on Breyer’s calls for resignation, White House press secretary Jen Psaki said it was the court’s decision to make. This week, Biden said of McConnell’s veiled threat: “Mitch has been a ‘no’ for a long time, and I’m sure he means exactly what he’s saying. But we will see.
Supreme Court justices are generally low-key, rarely giving interviews or commenting on issues. Breyer, a Harvard Law School graduate and former professor whose CV includes stints at the United States Department of Justice and the United States 1st Court of Appeals, has said little about his plans.
He made headlines earlier this year when he gave a Harvard lecture titled “The Authority of the Court and the Peril of Politics,” in which he rejected calls to “pack” the court with additional judges, and defended the institution’s independence from whites. Chamber and Congress.
“If the public views judges as politicians in their robes, their confidence in the courts – and in the rule of law itself – can only diminish, diminishing the power of the court, including its power to act as a control over other branches, ”Breyer said.
Jonathan Turley, a professor at George Washington University Law School, said the speech suggested Breyer might not accept the political campaign calling for his departure.
“There is no doubt about Breyer’s insight or continued intellectual ability, so the question is whether he thinks he should leave the field,” Turley said. “Judge Breyer can conclude that it is more damaging for the tribunal as an institution for it to give in to this type of campaign than for it to stay on the ground. “