Is this guy really going to risk Ginsburg/Barrett redux in 2023 or 2024 when the Court already has a comfortable-ish 6-3 conservative majority? He must realize that if he passes on the opportunity to retire at a moment when Democrats enjoy total control of government and a seventh Republican appointee ends up filling his seat, that’ll be the entirety of his legacy within his own party.
If you believe CNN, it sounds like he does realize that and doesn’t much care. He’s enjoying himself too much right now as the new captain of Team Blue on the Court to retire. It took him 25 years to become the longest-serving liberal among the justices, which entitles him to certain procedural perks — he gets to assign more opinions now and to speak earlier during deliberations, giving him marginally more ability to influence outcomes. Are those personal perks enough to warrant risking a 7-2 Republican majority? Evidently:
Far from Washington and the pressures of the recently completed session and chatter over his possible retirement, Breyer, a 27-year veteran of the high court, said Wednesday that two factors will be overriding in his decision.
“Primarily, of course, health,” said Breyer, who will turn 83 in August. “Second, the court.”…
When asked directly over coffee in rural New Hampshire whether he had decided when to step down, Breyer said simply, “No.”…
Breyer said his new seniority in the justices’ private discussion over cases “has made a difference to me. … It is not a fight. It is not sarcasm. It is deliberation.”…
He also undertook a new role in internal debate, speaking sooner in the justices’ private conferences, steered by the rhythms of seniority.
Liberals are greeting the news that retirement isn’t imminent with mixed emotions ranging from “horrified disbelief” to “possible aneurysm”:
Democrats concerned by this will likely change their mind once they hear how much more personally fulfilling it is to speak 3rd rather than 4th in internal deliberations and get to write dissents RBG used to claim by seniority. https://t.co/88dnYiZsFF
— Benjy Sarlin (@BenjySarlin) July 15, 2021
— Brian Beutler (@brianbeutler) July 15, 2021
Stephen Breyer is putting himself and his own personal wants above the justice he claims to believe in. What a disaster. Congress needs to expand the Supreme Court, especially given his arrogance. https://t.co/94vTNKfgg1
— Robert Cruickshank (@cruickshank) July 15, 2021
if nothing else, there should be term limits on the supreme court, if not the entire federal judiciary. even by the loose standards of U.S democracy, untenable to have people with this much power serve this long without any check from the public https://t.co/SWspkDIWVX
— b-boy bouiebaisse (@jbouie) July 15, 2021
This just reflects a pathological disregard for other human beings at this point with the consequences made clear by Ginsburg’s death https://t.co/JUPMK5mPla
— Adam Serwer 🍝 (@AdamSerwer) July 15, 2021
Potentially Breyer could serve another year with no harm done to Democratic ambitions to appoint his replacement. They’ll control the White House until 2025 and the Senate until 2023 at the earliest … unless a Democratic senator from a state with a Republican governor dies or abruptly retires for some reason. The good news for Dems is that most of their Senate caucus hails from states governed by other Dems, ensuring that any replacements will maintain the 50/50 balance. The Democrat most likely to step down due to health reasons, Dianne Feinstein, comes from an indigo blue state and will be replaced by not just a fellow liberal but someone to her left. And in a few states that have Republican governors but Democratic senators, the governors are sufficiently centrist that they might appoint a Democrat to fill a suddenly vacant Senate seat. I’m thinking of Larry Hogan in Maryland, Charlie Baker in Massachusetts, Phil Scott in Vermont, possibly Chris Sununu in New Hampshire.
Although, if Hogan’s serious about a quixotic presidential run in 2024, passing on a chance to hand the Senate majority back to Republicans and thereby instantly thwarting Biden’s agenda would make his candidacy even deader than it already is.
There are a few Republican governors in states represented by Democrats in the Senate who can be counted on to fill any sudden vacancies with righties, though, putting McConnell back in charge of the chamber. I’m thinking of Doug Ducey in Arizona, Greg Gianforte in Montana, Jim Justice in West Virginia, maybe Mike DeWine in Ohio, and especially Brian Kemp in Georgia, who’s desperate to rebuild goodwill with the GOP base ahead of his run for reelection after Trump made him a MAGA enemy over 2020. The wrinkle is that none of the Senate Democrats who represent their states are particularly old or in poor health. Joe Manchin’s the oldest at 73 and the only one of the group over 70. Two more, Sherrod Brown and Jon Tester, are in their 60s and the rest — Mark Kelly, Raphael Warnock, Kyrsten Sinema, and Jon Ossoff — are spring chickens by Senate standards. Scandal is always possible, but it would take a mega-scandal for Democrats to agree that any of them should resign in disgrace given what that would mean to the balance of power in the Senate.
All of which is to say that Dems can probably get away with another year of Breyer on the Court. And even if one of the senators I just mentioned had to suddenly leave office for whatever reason and was replaced by a Republican, it may be that McConnell would agree to hold a confirmation hearing on Biden’s nominee depending upon when a Court vacancy opened up. He won’t do it in 2024, an election year, and probably won’t do it in 2023. But 2022 would be awfully early to start roadblocking SCOTUS appointments by a president from the other party.
Of course, that assumes Breyer isn’t still having too much fun on the Court to retire next year either.
Here’s Joan Biskupic, who interviewed him for CNN’s scoop today, recounting their conversation.
Justice Stephen Breyer has not decided when he will retire and is especially gratified with his new role as the senior liberal on the bench, he told @JoanBiskupic in an exclusive interview.https://t.co/IpZTDN6w0Y pic.twitter.com/XXDG3f7qbv
— New Day (@NewDay) July 15, 2021