WASHINGTON – Forgive progressives who are not looking forward to the sequel to their personal “Nightmare on First Street”, a story of Supreme Court succession.
The original followed Judge Ruth Bader Ginsburg’s decision to waive the retirement of the upper court, located on First Street in Washington, when Democrats controlled the White House and the Senate for six years from Barack Obama’s presidency, until 2015.
Despite some admonitions about what could happen, Ginsburg remained in court until his death last year at the age of 87. President Donald Trump replaced the liberal icon with a young conservative, Judge Amy Coney Barrett, and consolidated a conservative 6-3 majority in court just over a month before losing his run for second term.
In the updated version, Judge Stephen Breyer, 82, plays the lead role. He is the oldest member of the court and has served for more than 26 years since his appointment by President Bill Clinton.
With spring comes the beginning of the period when many judges announced their retirement. Some progressives say it is time for Breyer to leave, without delay. Other liberal voices said that Breyer should retire when the court finishes its work for the term, usually in the beginning of the summer.
“He must announce his retirement immediately, upon confirmation of his successor,” University of Colorado law professor Paul Campos wrote to The New York Times on Monday.
Campos’ appeal stems from the tenuous control of Democrats in power.
A Democrat, President Joe Biden, lives in the White House and his party rules the equally divided Senate because the 51st tie vote belongs to Vice President Kamala Harris.
But there is no scope for the death of a senator or crippling illness that could instantly hand over control to Republicans. Campos noted that the party composition of the Senate has changed more frequently than ever in each two-year session of Congress since the end of World War II.
Breyer remained silent about his plans, at least publicly. His last comment on the topic of retirement was made to Slate’s Dahlia Lithwick in an interview published in December. “I mean, eventually I’m going to retire, for sure,” said Breyer. “And it is difficult to know exactly when.”
The judge, through a court spokesman, declined to comment on the story. Breyer’s predecessors tend to schedule their pensions so that they can be replaced by judges with similar views of the law.
Some who asked Ginsburg to retire also said that Breyer, five years younger than Ginsburg, should have thought about giving up too.
Biden has already pledged to nominate the first black woman to the court, if given the chance. Among the names in circulation are California Supreme Court Judge Leondra Kruger, United States District Court Judge Ketanji Brown Jackson and United States District Court Judge Michelle Childs. She is a favorite of Congressman James Clyburn, D-South Carolina, who made a crucial endorsement of Biden just before the state’s presidential primaries last year.
Breyer could announce his plans at any time, or say nothing and stay on the court. Judges Harry Blackmun, David Souter and John Paul Stevens announced their plans in April or May. Judges Anthony Kennedy and Sandra Day O’Connor waited until the beginning of the summer.
Breyer’s departure would do nothing to change the conservatives’ 6-3 advantage in the Supreme Court. Republicans signed and expanded conservative control of the court during Trump’s presidency.
First, they refused to consider Obama’s appointment of Merrick Garland after Judge Antonin Scalia died in 2016. Trump chose Judge Neil Gorsuch, 53, for the chair less than two weeks after taking office. Kennedy’s retirement in 2018 and Ginsburg’s death in September led to confirmation battles that ended with Judge Brett Kavanaugh, 56, and Barrett, 49, at court.
But while the ideological makeup would remain the same, Breyer’s retirement would allow Biden to rejuvenate the liberal side of the court, where Judge Sonia Sotomayor is 66 and Judge Elena Kagan is 60.
If Breyer resigns, Clarence Thomas, 72, will be the longest serving judge in the court.
Ginsburg maintained a steel confidence, albeit ultimately mistaken, that Democrats would keep the White House in 2016. She also doubted that Democrats could confirm someone as progressive as she was under existing rules that allowed the minority party to block, or at least delay, the Supreme Court Appointments.
“So who do you think could be nominated now to pass the Senate and who would you rather see in court than me?” Ginsburg asked rhetorically in an interview with The Associated Press in August 2014.
Republicans changed these rules in 2017 to avoid a democratic obstruction to Gorsuch’s nomination.
But in particular, Ginsburg asked for advice on what he should do, Ohio State University law professor Deborah Merritt said on Monday in an online celebration of what would be Ginsburg’s 88th birthday.
Ginsburg asked Merritt, her former legal adviser, what she thinks of people suggesting she retire while Obama was still in office “just in case the next president is not a Democrat,” said Merritt.
“Who is the next president is our job, not yours. I think you should stay on the court for as long as you feel able to do your job. The rest of us will do our job, ”recalled Merritt telling justice in a 2015 conversation.
Lawyers are perhaps the least likely people to tell the judges they’ve served that it’s time to retire.
The issue provokes equally strong reactions from people who say it is presumptuous to ask a judge to resign for political reasons and those who say it is naive to do otherwise.
Mark Sherman story.