Ol’ Justice Breyer knows how to read a poll. The House is gone and the Senate increasingly looks like a 50/50 status-quo best-case scenario for Democrats in 2023.
If he doesn’t bail out this year, the left will be facing the very real prospect of a 7-2 conservative majority in 2025.
NBC says he’s bailing out.
— Josh Lederman (@JoshNBCNews) January 26, 2022
Why announce now that he’s leaving at the end of the term instead of announcing at the end of the term in June that he’s leaving, as retiring justices typically do? I … don’t know. All I can think is that, with a 50/50 Senate, he wanted to start the wheels of confirmation turning ASAP. It’s possible that a Democratic senator from a red state might die between now and June, leaving the Republican governor free to appoint a righty to succeed that person. If that happens and McConnell becomes majority leader, a successor to Breyer might be unconfirmable.
By announcing now that he’s leaving, it makes it harder for Republicans to try to abruptly short-circuit the process and keep the seat open if fate hands them the majority before summer. Especially if Breyer’s replacement is a black woman, as virtually everyone expects.
Relatedly, it’s possible that the die has been cast within the Court for overturning Roe in the upcoming Dobbs ruling. If so, Breyer may have decided that the long-term project to rebuild a liberal SCOTUS majority needs to begin immediately. That means stepping down and ensuring that a young liberal takes his place.
In fact, I wonder: Could Dems proceed immediately on confirming a new justice even though Breyer still has five months left on the bench? I can’t think of any reason why they couldn’t so long as he makes his intention to retire official. Holding a confirmation hearing ASAP would also help hedge against the risk of Democrats suddenly losing the majority.
And inasmuch as seeing a new liberal justice appointed will provide extra motivation for Republicans to vote in November, getting this over with early in the year may dampen the “turnout fuel” effect of Breyer’s retirement.
Although NBC is reporting that Breyer intends to stay through the end of the term, CNN suggests he could leave sooner:
Wolf reports that Biden and Breyer will announce this as early as tomorrow. And Breyer won’t leave until a nominee is confirmed
— Manu Raju (@mkraju) January 26, 2022
“Breyer won’t leave until a nominee is confirmed” takes a bit of pressure off Joe Manchin to vote with his party on the nominee, even though he’s been a loyal soldier for Biden on judicial nominations so far. If Manchin doesn’t like the candidate, he could oppose her in the expectation that Breyer will hang around on the Court until a more fitting replacement is seated. It’d stay 6-3 so long as Breyer’s health held up.
The two frontrunners to fill his seat are Ketanji Brown Jackson and Leondra Kruger with Jackson the favorite, I think. She was appointed last year by Biden to the D.C. Circuit, traditionally a launching pad to SCOTUS for Supreme Court contenders. She’s also a former Breyer clerk; to the extent Breyer himself has any influence over Biden’s decision, she may have the inside track. (Recall that Brett Kavanaugh also replaced his former boss, Anthony Kennedy, with Kennedy’s support.) Kruger, a justice on the California Supreme Court, has the advantage of being just 45 years old, six years younger than Jackson. And she has a Supreme Court resume too, having once clerked for John Paul Stevens.
They also both have a pedigree from the Obama administration, with Jackson having been first appointed to the federal bench by Biden’s running mate and Kruger having served as deputy solicitor general in the Obama DOJ. Either one will be confirmed easily by the Senate, I expect. (“Easily” by 2022 standards means ~55 votes.) Manchin and Sinema will probably view it as an easy opportunity to earn back some cred with their base. And Republicans on the fence will likely vote yes so as not to be accused of obstructing the Court’s would-be first ever black woman member.
Exit question: Did Mitch McConnell force Breyer’s hand when he wouldn’t promise to hold confirmation hearings on a SCOTUS nominee in 2023 if Republicans regained the majority? Maybe Breyer was willing to stick it out another year and then heard that, leaving him with no choice but to quit while Democrats were still in charge.
Update: Ed predicts that the din of lefty voices calling for Manchin’s and Sinema’s heads is going to get very quiet very quickly.
And just like that … Joe Manchin became valuable to Biden and Schumer again. Let's ask Warren, Sanders, et al about their primary strategies now. https://t.co/5kDMhG9328
— Ed Morrissey (@EdMorrissey) January 26, 2022
Update: A reminder:
Reminder: During the 2020 campaign, President Biden promised that, if elected, he'd put the first Black woman on the Supreme Court.
— Kyle Griffin (@kylegriffin1) January 26, 2022
Democrats are desperate for a way to shore up their support among black voters after the fiasco of trying to get federal voting-rights bills passed. Filling Breyer’s vacancy is a golden opportunity for Biden.
Update: A potential problem for Kruger — from the left:
5/ In fact, Justice Kruger might be more moderate than some on the hard left might want. But I think it would be hard for them to complain too much; she would be the first Black woman on #SCOTUS, and she's only 45.
— David Lat (@DavidLat) January 26, 2022
Update: Pressure’s on…
— David Weigel (@daveweigel) January 26, 2022
Update: Oops. I mentioned Gorsuch up above when I meant to say Kavanaugh. Fixed now.