They failed to push Ruth Bader Ginsburg into a strategic retirement. Now progressives want a replay with Stephen Breyer, and they’re getting pushier than ever, the Associated Press reports. But is this the most propitious time to get a hard-left replacement for a justice who’s among the friendliest to progressives?
Despite some pointed warnings of what might happen, Ginsburg remained on the bench until her death last year at age 87. President Donald Trump replaced the liberal icon with a young conservative, Justice Amy Coney Barrett, and cemented a 6-3 conservative majority on the court just over a month before he lost his bid for a second term.
In the updated version, 82-year-old Justice Stephen Breyer plays the leading role. He is the oldest member of the court and has served more than 26 years since his appointment by President Bill Clinton.
With spring comes the start of the period in which many justices have announced their retirement. Some progressives say it is time for Breyer to go, without delay. Other liberal voices have said Breyer should retire when the court finishes its work for the term, usually by early summer.
“He should announce his retirement immediately, effective upon the confirmation of his successor,” University of Colorado law professor Paul Campos wrote in The New York Times on Monday.
Traditionally, resignations take place at or just before the end of a term, not at the midway point. Sometimes, one can read tea leaves in the form of hiring clerks, although that’s not always dispositive. (That model gave a false positive with Anthony Kennedy, if I recall correctly.) A retirement at the end of June would give Joe Biden and Chuck Schumer plenty of time to find a replacement before the first Monday in October.
It’s not clear what the rush is here. The last thing Biden needs at the moment is a food fight over a Supreme Court opening. He wants to focus on infrastructure at the moment and find a way to bring in some Republicans (about which more later), not find ways to drive wedges even more deeply. As the AP points out, a Breyer retirement won’t change the tilt of the court, and it wouldn’t even make it appreciably more progressive. And with 50 Republicans in the Senate until at least January 2023, Biden would be hamstrung by moderates in the Senate Democratic caucus when picking a replacement, at least in theory.
This looks more like progressives getting desperate for some kind of win in 2021. They lost on the Fight for 15, they’re losing spectacularly so far on the filibuster, and now it looks as though they won’t be able to push through much of their legislative agenda. Pushing Breyer under the wheels at least would give them something to cheer.
But really, why do this now? Perhaps in 2023 the Senate may be back in the GOP’s control, but right now those odds look long. (The House is a more promising target in a first midterm election for a new president.) Republicans will defend six more seats than Democrats (20-14), and five of the GOP’s incumbents won’t run in 2022. Pennsylvania and North Carolina are both pretty good opportunities for Democratic pickups, while the GOP probably will only compete for pickups in Georgia and Arizona, and even then only if you-know-who stays out of the fight. And that Missouri seat being held by Roy Blunt at the moment might not be a slam dunk to hold for the GOP either.
Breyer’s probably not going anywhere for a while on the basis of progressive pressure alone. You don’t seek out this kind of appointment while planning for a long retirement, after all. But I wouldn’t predict that he’ll wait around until the next presidential election either, not after seeing the messes that took place when Antonin Scalia and Ginsburg both died in election years. Unless he’s feeling chipper in 2024, Breyer will probably be gone well before then.