- The Washington Times - Wednesday, January 26, 2022

Justice Stephen G. Breyer will retire from the Supreme Court, closing out a decades-long tenure for the liberal-leaning justice and giving President Biden his first chance to shape the court.

The 83-year-old associate justice had been under pressure from some liberal groups to leave the bench while Mr. Biden is in office and Democrats have control of the Senate, giving the president a chance to install someone younger.

Mr. Biden has promised to make history by naming the first Black woman to the court, and the White House said Wednesday that the president stands by that vow.

He will need to get his pick through the Senate. Thanks to rule changes over the past decade that defanged the filibuster for nominees, he will need to corral only a majority in the 50-50 chamber, with Vice President Kamala Harris as a tiebreaking vote.

Senate Majority Leader Charles E. Schumer, New York Democrat, vowed a prompt committee hearing on any Biden pick and a vote on the Senate floor “with all deliberate speed.”

He also praised Justice Breyer’s tenure.

“He is, and always has been, a model jurist. He embodies the best qualities and highest ideals of American justice: knowledge, wisdom, fairness, humility, restraint,” Mr. Schumer said.

Justice Breyer reportedly will formally announce his retirement Thursday at the White House. He is expected to serve until a replacement is confirmed, likely in time for the court’s next term to begin in October.

Mr. Biden said he will reserve his own comments until the formal announcement.

“Let him make whatever statement he wants to make, and I’m happy to talk about it later,” the president told reporters.

Justice Breyer was picked for the court in 1994 by President Clinton, and Mr. Biden, then chairman of the Senate Judiciary Committee, shepherded him through the confirmation process, culminating in an 87-9 vote on July 29.

He was usually overshadowed during his time on the bench by the other Clinton pick, Justice Ruth Bader Ginsburg.

He was known to be a reliable but rarely flashy voice for liberal positions and for his folksy approach to oral arguments. He would pepper attorneys with questions designed to cut through the legal intricacies and get at the real-world effects of cases.

In this month’s argument over Mr. Biden’s COVID-19 vaccine mandate on large companies, as Republican-appointed members were focusing on the executive branch powers, Justice Breyer said the court needed to be aware of the impact of ruling against the president.

“If we delay it a day, and if it were to have effect, then 750,000 more people will have COVID who otherwise, if we didn’t delay it, wouldn’t have?” he said.

In recent years, Justice Breyer led a push to have the court reexamine the constitutionality of the death penalty. He said it had become an unconstitutional “cruel and unusual punishment” in the 21st century.

He said capital punishment was applied arbitrarily, inmates were waiting too long on death row and there were problems with how executions were administered.

“I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the court should call for full briefing on the basic question,” he wrote in a 2015 opinion launching his crusade.

Justice Breyer’s retirement offers Democrats their first chance to shape the court since 2010, when President Obama named the second of his two picks.

Still, it’s unlikely to change the ideological divide, with six Republican-appointed justices and three Democratic appointees.

Sen. Lindsey Graham, a South Carolina Republican who helped shepherd President Trump’s three picks through the Senate, said he expects Democrats will be able to push through whomever they want.

“If all Democrats hang together – which I expect they will – they have the power to replace Justice Breyer in 2022 without one Republican vote in support,” he said. “Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court.”

That doesn’t mean the process will be easy.

Even with a majority threshold for confirmation in place, Mr. Trump’s picks faced severe opposition. Justice Neil M. Gorsuch was approved on a 54-45 vote, Justice Brett M. Kavanaugh on a 50-48 tally and Justice Amy Coney Barrett on a 52-48 vote.

Justice Barrett’s confirmation gave Republican presidents a sixth pick on the court, tilting it away from the 5-4 balance that had predominated for years.

Replacing Justice Breyer won’t reshape that balance, but it does give Democrats a chance to install a younger judge who can anchor the spot for decades.

Still, the move is not without a cost.

Working on a Supreme Court pick could take time away from confirmations of other federal judges, which has been a major project for a Biden administration looking to tilt the balance of key appeals courts.

The retirement also could sap energy from liberal activists’ push to expand the court’s membership.

Justice Breyer still faces a series of momentous cases this year.

The court has heard arguments in two major abortion rights cases, one of which could lead to overturning the 1973 Roe v. Wade decision that established a national right to abortion.

Justice Breyer has been a firm defender of Roe. He wrote the majority opinion in a 2000 case striking down Nebraska’s ban on what the state labeled “partial-birth abortion,” a late-term procedure in which a fetus is partially delivered for purposes of termination.

The court also has taken up significant cases on affirmative action at colleges, New York’s gun control laws and Maine’s policy barring parents from using state money to send their children to religious schools.

As news of Justice Breyer’s retirement was announced, liberal groups praised him for heeding their calls.

Rachel O’Leary Carmona, executive director of the Women’s March, said he made “the right and righteous decision.”

“The stakes are too high to risk leaving his replacement — and the fate of almost everything our organization believes in and fights for — in the hands of Mitch McConnell,” she said, referring to Senate Republican leader.

Liberal groups were desperate to have Justice Breyer act this year. Should Republicans win control of the Senate in November’s elections, they would have a far bigger say in who could get confirmed.

Activists are still reeling over Ginsburg’s decision not to retire while Mr. Obama was in office. Her death in 2000 gave Mr. Trump his third nominee, Justice Barrett. 

Democrats signaled Wednesday that they hope to use the retirement to revive flagging enthusiasm on the left ahead of the midterm elections.

“This vacancy reinforces the stakes of this year’s election and why we must defend and expand our Democratic Senate majority with the power to confirm Supreme Court justices,” said Sen. Gary C. Peters of Michigan, the chairman of the Democratic Senatorial Campaign Committee.

In addition to Justice Breyer, the Democratic appointees on the court are Obama picks Justice Sonia Sotomayor and Justice Elena Kagan.

The six Republican-appointed justices, in addition to the three Trump picks, are Justice Clarence Thomas, a George H.W. Bush pick, and Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., both George W. Bush nominees.

• Haris Alic can be reached at halic@washingtontimes.com.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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