I’m dying to know who’s responsible for this sh*tshow.

It couldn’t be our extremely competent White House, could it?

A few hours ago I rattled off some theories as to why Breyer might have announced his retirement early in the term rather than at the end, in June. Here’s a new theory for you: He didn’t intend to announce it yet.

Someone jumped the gun.

Multiple sources tell me Justice Breyer was not planning to announce his retirement today. They describe him as "upset" with how this has played out. We still await any official notice from his office and/or the #SCOTUS public information office.

— Shannon Bream (@ShannonBream) January 26, 2022

Breyer is upset about the way this leaked out, sources close to SCOTUS tell me. Usually SCOTUS justices are allowed to announce their retirement on their own terms, as has occurred in the last three retirements. (see thread and timing, below)
This is very early in the yr./term https://t.co/s2JWoxuWDu

— Susan Crabtree (@susancrabtree) January 26, 2022

I’m thisclose to embracing the conspiracy theory that Breyer didn’t intend to retire at all and a liberal source tried to force his hand by making up a lie about an imminent announcement and feeding it to the press. If he’s not going to retire voluntary, progressives will have to take matters into their own hands by ginning up a media frenzy that all but requires him to do so!

That’s probably not how this went down, though. Neither Bream nor Crabtree claims that he never intended to retire. Presumably he has in fact decided to do so and informed some relevant players of that in the expectation that they’d keep it closely guarded until he chose to make the announcement.

Yet those relevant players couldn’t keep his secret, it turns out. I wonder who they might be.

Notably, the White House has been quite scrupulous over the past few hours about not commenting on Breyer’s retirement, cautioning the press that there’s no confirmation that it’s happening. First the president himself did it:

During an event at the White House on his Build Back Better agenda, Biden declined to address the news of Breyer’s retirement, telling reporters that he will wait until a formal announcement is made. pic.twitter.com/A1OFq4gY26

— The Washington Post (@washingtonpost) January 26, 2022

Then his spokesman did it:

So after Fox News and right-wing media push a wild theory that Kamala Harris may be nominated to the Supreme Court, NBC News' Peter Alexander asks Jen Psaki if there's "any scenario" in which that happens.

Psaki says she won't talk about SCOTUS until Breyer speaks out publicly. pic.twitter.com/0INDMgAoar

— Justin Baragona (@justinbaragona) January 26, 2022

Are Biden and Psaki just being polite? Or is something else going on?

Time for another half-baked theory. Breyer quietly decided to retire sometime in the past week, intending to announce that soon-ish. Maybe this month, maybe next month, maybe before summer, but the decision was made. Being a conscientious guy, he felt obliged to let the White House know that a retirement was impending. That was a courtesy, a heads-up to help them prepare in advance for a Category Five political hurricane. Maybe he gave them a timetable more specific than “by the end of the term,” maybe he didn’t. Either way: Get ready. And in the meantime, keep your mouths shut.

But the White House couldn’t do that. They’re flailing politically and confronted with a demoralized base that was bitterly disappointed about Build Back Better and then bitterly disappointed again by the failure of the voting-rights push. Democratic voters need something to get excited about. And with no end in sight to COVID, inflation, or the Russian threat to Ukraine, there was nothing the administration could offer them.

Except for one delicious little secret they weren’t supposed to share but which they knew would send their supporters over the moon if they did.

So the news leaked and maybe an angry Breyer called the White House today, accusing them of having shared the news before he was ready to share it. And that in turn might have made Biden and Psaki scramble to be extra-deferential to him publicly, insisting that until the justice himself confirms that he’s retiring they won’t presume anything and won’t even address the subject. They’re doing what little they can to put the genie back in the bottle before he gets so pissed off that he decides to spite them by changing his mind.

Just a theory, let me stress. But I like it. It certainly beats the probable truth, that he told his cousin or whatever and the cousin blabbed to NBC News.

Although, if you believe Ed Whelan, Breyer’s looming retirement wasn’t some sort of state secret in Washington:

I'm surprised that Breyer's intent to retire is leaking only now. I heard from a secondhand but very reliable source in early October that Breyer was already telling folks he was close to that this would be his last term.

— Ed Whelan (@EdWhelanEPPC) January 26, 2022

By the way, assuming he does follow through and retire, are we 100 percent sure that Democrats have the votes to confirm his replacement? Philip Elliott of Time is reading the fine print on Senate procedural rules and isn’t so sure:

[I]n a little-noticed backroom deal that took more than a month to hammer out, McConnell and Senate Majority Leader Chuck Schumer agreed to a power-sharing plan in February that splits committee membership, staffs and budgets in half. (A full nonpartisan analysis from the Congressional Research Service regarding the current process for nominees is here.)

Why does this matter? If all 11 Republican members of the Judiciary Committee oppose Biden’s pick and all 11 Democrats back her, the nomination goes inert. (A pretty safe bet in a committee where at least half of the Republican members have White House ambitions of their own.) The nomination doesn’t die, but it does get parked until a lawmaker—historically, the Leader of the party—brings it to the floor for four hours of debate.

A majority of the Senate—51 votes, typically—can then put debate about the issue on the calendar for the next day. But that’s the last easy part. When the potential pick comes to the floor again, it’s not as a nomination. At that point, it’s a motion to discharge, a cloture motion that requires 60 votes. In other words, 10 Republicans would have to resurrect the nomination of someone already blocked in the Judiciary Committee.

I can’t vouch for Elliott’s reading of the rules but if he’s right then the success of Biden’s nominee depends heavily on there being one Republican on the Judiciary Committee who’s willing to vote with Democrats to send the nomination to the floor. And if you scan the list of GOP committee members you’ll find that most are staunch conservatives, the sort who typically don’t make nice with Dems on judicial nominees. The one notable exception: Lindsey Graham, who’s made it a point to support Democratic SCOTUS nominees in the past so long in the belief that the president is entitled to some deference on judges. How’s Graham going to hold up this time once the right figures out that his vote might be decisive?

I’ll leave you with this. “Elections have consequences.”

Graham, who voted for Sotomayor and Kagan, says: “Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court.” pic.twitter.com/72tPFP6z5E

— Manu Raju (@mkraju) January 26, 2022