Democrats are eager for Justice Breyer to retire but worried about looking too eager

Erin Schaff/The New York Times via AP, Pool

NPR published a story Monday headlined “Liberals Admire Justice Breyer. Now They Want Him To Retire.” The story sets out the expected deadline for a possible retirement announcement.

With Democrats holding the White House and the barest of Senate majorities, there is immense urgency among progressives for Breyer to announce his retirement when the Supreme Court term ends around the end of June. That push is amplified by interest and organizing among Democrats that’s centered on the courts and has increased as Republicans built a 6-3 conservative majority in the Supreme Court over the last four years.

“If Justice Breyer is to be committed to his judicial ideology, he is going to want to be replaced on the bench by someone who is going to vote to uphold the fundamental right to vote in this country and to protect the rights of the most marginalized members of our society,” said Rep. Mondaire Jones, D-N.Y.

Today CNN has a story along these same lines which points out why Democrats are so very nervous right now. It’s not just the possibility that Republicans could retake the Senate in the 2022 elections. It’s that they could in theory lose control of the Senate “at any moment.”

The clock is ticking for the party, because the Senate could fall into Republican hands during the midterm elections next year — or, actually, at any moment. Two members of the Democratic majority are near or just over 80 years old, and they hail from a state where a Republican governor would name their replacement if they weren’t able to serve.

Democrats are thinking about what happened to Justice Ginsburg, who waited too long to retire (in their view) and couldn’t hold out long enough for a Democratic President to replace her. The situation wouldn’t be the same if control of the Senate reverted to Republicans. President Biden would still make the nomination but the possibility of having the nominee voted down would be much greater with Republicans in control. And that might force Biden to select someone more moderate and less progressive in order to get the nominee through.

So progressives want Breyer, who is 82-years-old and will turn 83 in August, to resign now. However, many also recognize that appearing too eager could backfire.

Breyer — at age 82 the senior liberal on the Supreme Court — is keen on keeping the high court free of political influence. And at a moment when a Democratic president gets to nominate any new justice, and Democrats hold the Senate’s tie-breaking vote on confirmation, an open campaign to squeeze him out could have the opposite of the intended effect.

So while many congressional Democrats admit the ticking clock is on their minds, multiple sources tell CNN, they’re almost all keeping a studiously respectful distance.

The CNN story goes on to try to parse the tea leaves about what Breyer might decide to do. On one hand, he’s staffed up for another term.

Some court watchers note that Breyer has hired a full complement of clerks for the next court term, taking it as a sign that he might stick around.

“I now believe that there’s a 70-30 chance that Justice Breyer will remain on the court for at least one more term,” lawyer David Lat wrote on his Original Jurisdiction Substack, where he reported Breyer’s hiring of four clerks.

On the other hand, one former clerk, who hasn’t spoken with Breyer about the decision, thinks he will step down. In short, no one really knows what Breyer will do and that’s partly why progressives are a bit nervous. Finally, the CNN story ends with a quote from another Democrat some progressives have tried to push out of office:

You may recall that progressives became furious with Feinstein during the confirmation of Amy Coney Barrett. In particular they were angry that she thanked Sen. Graham for his “fairness” and then gave him a hug. So naturally, a lot of progressives are reacting to Feinstein’s comments today with scorn, to the point that she is now trending on Twitter. Here’s a brief sample.

There’s a lot more like this but you get the gist.

So will Breyer take the hint? I think he obviously will before 2022 but I’m not sure that will be this June. He may decide he doesn’t want to give in to the partisans right away and hold off another year. We’ll know for sure in a little over a month.