A group of 18 law scholars have issued an extraordinary joint letter urging U.S. Supreme Court Justice Stephen Breyer to step down so Joe Biden can name his successor.
The intervention came after Mitch McConnell, the leader of the Republican minority in the Senate, warned that Biden would not get confirmation of a Supreme Court candidate in 2024 if Republicans regained control of the chamber and ‘a position becomes available.
With Tories holding a 6-3 majority in court, progressive activists have called on Liberal Breyer, who at 82 is the oldest member of the bench, to step down this year while Democrats tightly control the Senate.
“It is time for Supreme Court Justice Stephen Breyer to announce his intention to retire,” the lawyers said in a statement. “Breyer is a remarkable jurist, but with the future control of a tightly divided Senate uncertain, it is better for the country that President Biden has the opportunity to appoint a successor without delay. “
The signatories include Niko Bowie of Harvard Law School, Erwin Chemerinsky and David Singh Grewal of the University of California, Berkeley, School of Law; Daniel Morales of the University of Houston Legal Center; Samuel Moyn of Yale Law School, Zephyr Teachout of Fordham University; and Miranda Yaver of Oberlin College.
The statement was released by Demand Justice, a progressive group that is mounting a concerted campaign for Breyer to think about his position, with everything potentially at stake, from reproductive rights to voting rights and gun control.
This week he is part of 13 liberal groups, including Black Lives Matter, Sunrise Movement and Women’s March, posting an advertisement in leading media. He said: “Supreme Court Justice Stephen Breyer should immediately announce his intention to step down from the bench.
“With future control of a tightly divided Senate uncertain, President Biden must be given the opportunity to appoint a successor without delay and keep his promise to place the first black woman on the Supreme Court. “
The ad concludes: “If Breyer were replaced with additional ultra-conservative justice, an even more right-wing Supreme Court would put our democracy and the rights of marginalized communities at even greater risk. For the sake of the country, now is the time to step back. “
While he was majority leader, McConnell barred Barack Obama from filling a post left vacant by the death of Conservative Judge Antonin Scalia in February 2016, saying it would be inappropriate to confirm a Supreme Court candidate in the course of ‘a presidential election year.
McConnell and his Senate Republican colleagues declined to consider Obama’s candidate Merrick Garland, who is now Biden’s attorney general. This allowed Donald Trump, winner of the November 2016 election, to appoint Conservative Judge Neil Gorsuch in 2017.
Democrats accused McConnell of hypocrisy last year when he allowed the Senate to confirm Trump’s Conservative candidate Amy Coney Barrett to replace Liberal Judge Ruth Bader Ginsburg, who died in September, about six weeks before the 2020 presidential election.
Christopher Kang, co-founder and chief counsel of Demand Justice, told the Guardian’s Politics Weekly Extra podcast, “I certainly think looking back, and even then, a lot of people thought the thing to be safe. what Justice Ginsburg did to ensure that his legacy would have been to retire.
“I think that’s the same conversation a lot of progressives are having right now about Justice Breyer, who is one of those three Democrat-appointed Supreme Court justices. He is 82 years old. He could retire and we think he should retire now and make way for the first black woman to sit on the Supreme Court.
Kang, who served in the Obama White House, added, “But it’s difficult because Supreme Court justices are appointed for life now and the decision to retire is entirely up to them.
“I was not part of the decision-making process at the time as to whether or not to contact Justice Ginsburg. I understand that the White House at the time chose not to do this, but I think that certainly looking at the impact of what happened, we could be in a very different place.