Breyer To Retire (Soon)

Jen Psaki might not have wanted to assume so without a formal announcement from the horse's mouth, but after some teases recently from people with supposed close connections to Breyer, it basically is assumed to be now. This includes not only a range of SCOTUS reporting, but Majority Leader Chuck Schumer (with an ill-advised "all deliberate speed" reference to the speed of the process) on down giving Breyer their thanks and assuming a pending confirmation process. 

(I did see a different phrasing later, perhaps an assistant clued him in, though the guy did graduate law school not too far after Brown:  "In the Senate, we want to be deliberate, we want to move quickly, we want to get it done as soon as possible.")

President Biden is sticking with his promise to nominate the first black woman (black women are the most loyal base for Dems these days). Sherrilyn Ifill, moving on from heading the NAACP Legal Defense fund, is a sentimental favorite of some. But, probably in the order of likeliness, the short list appears to be:

• Ketanji Brown Jackson: D.C. Circuit
• Leondra Kruger: California Supreme Court
• Michelle Childs: South Carolina District Court

Judge Kruger reportedly was a top favorite for Solicitor General (Elana Kagan was Obama's), but she didn't want the job.  Jackson was recently confirmed to the D.C. Court of Appeals (53 votes).  She was even raised as a possibility for the Garland Seat, but she was a younger district court judge then.  It was not really sensible, especially for a lost cause seat where the best shot was to embarrass Republicans.  

Various examples can be cited to show the value of caution.  But, it is likely that he will announce his retirement and his replacement will be confirmed. Will it be without Republican votes as troll Lindsey Graham suggested? I have my doubts.  If their votes do not matter, and given Breyer's vote is not some sort of "swing" vote or anything, 

I think you will likely get at least two to five votes for the nominee. Also, helps Republicans seem reasonable and not racist.  I won't bet my non-existent farm on it and the lower number is clearly safer.  I do not think we will have to deal with the VP tiebreaker scenario.  And, no, I don't see Manchin or Sinema (neither who had issues with Biden nominees except in two or three cases, none judicial) causing any problem.  Not their concern.

(IF the Senate elections went differently, the Republicans could have been in control.  Given their votes mattering, I'm less clear you would get Republican 'aye' votes, if they mattered.   Or, if we would get a vote at all. Oh so important was that Georgia run-off.)  

There is being raised some idea that constitutionally a Vice President cannot be (Tribe regarding Pence) a tiebreaker here.  Vice President Harris already cast a tie-breaking vote in nominations.  The debate is on Advise and Consent power.  A divided vote is going to be pretty rare, but there were numerous cases where vice presidents cast a tiebreaker here.  

It might not be IDEAL for a vice president to be the tiebreaker here, at least for judicial nominations.  Even there, I'm not really sure why a slight tiebreaker should not be present since presidents are doing the nominating and here we have the president and a split of the Senate going one way.  Plus, the popular representation of the Senate favors the Democrats here, to the degree you want to toss that in. 

But, even if you are appealing to Hamilton's op-eds, he didn't differentiate judges here. And, even there, there is a recent precedent.  The argument is purely academic and normative.  The Constitution has no clear barrier, even on the level of not wanting a biased presider during an impeachment.  Anyway, I don't think it will matter in the end -- at least ONE Republican is likely to vote for the nominee along with 50 Democrats. 

SCOTUSBlog has a good summary of Breyer's career, including reactions from liberals regarding his latest book. At one point, Amy Howe references this commentary, which I generally support too (including the suggestion even by Breyer's own lights, it would be a good time to retire).  

Brianne Gorod, a former Breyer clerk, also is quoted on Twitter as noting that he "believes the courts should be attuned to the real-world context in which they are acting, as well as the consequences that will follow from their decisions."  Breyer is cited in general as a pragmatist, willing to compromise to get the most he can, the most practical result. 

This is a sensible pragmatic path, but it also should be factored in when making retirement choices.  And, regarding concerns about looking "too political," his approach already doesn't pretend they are just acting as separate independent entities without overlap.  Breyer's own writings suggests this is something of a gut check balancing test.  What "looks bad" matters.  It still does not mean reality should not enter into the equation.

If not now, when? A presidential election year is dubious.  So the next logical point is 2023, but that is just tempting fate.  He's 83.  It's sensible to retire now, even without (and you really should) noting the reality of how Republican control can result in no one replacing him.  The current Senate will provide for a smooth nomination, the first time in four tries. We have been down the opposite road too many times.  

Breyer can then enjoy his retirement and promote civics.  Meanwhile, the road to his replacement can be used to address not only his replacement, but the courts in general.  The Supreme Court is broken and the federal courts overall probably needs fixing (more lower court judges, for one).  This is a prime chance to discuss the matter, especially with the Presidential Supreme Court Commission out of the way. 

A third liberal vote is obviously not as important as a fifth and sixth conservative vote.  Probably the most important thing is the appointment of the first black woman justice.  A new liberal justice arising from a new generation will be important too.  The replacement will help prevent an eight person, 6-2, Court.  One of the recent cases, the Medicare/Medicaid vaccine case, could have went 4-4 in that case.  That matters.

But, no, for the short term, a one person shift in the liberal wing won't matter too much.  Justice Stevens argued (quoting Justice White as I recall) every new justice changes the Court somewhat.  As they might.  Breyer's vote mattered more with a 5-4 Court; a few cases will arise when even here the new justice might be a wild card.  It can matter more down the road.

[ETA: Breyer's positions on certain issues  highlight there is some possibility that some newcomer can have a difference voice, putting aside that let's say getting a former public defender there might actually bring Sotomayor a criminal justice defender from someone who wasn't a former prosecutor.  This might not matter much in the short term, but even one voice can matter somewhat.]

Still, including to give Biden/Harris a win, the nomination still matters. Breyer being on the Court (so nice to be in person to watch a conservative shift on multiple issues) rankles some while also stressing out.  A younger black woman justice among other things will be a net benefit.  If nothing else, it all matters to some degree.  Let's get moving!

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Meanwhile, there is an execution scheduled for tomorrow.  

Donald Grant alleges mental issues and challenges the safety of the lethal injection protocol (that ship has left to dock or whatever though his petition claims there is evidence from the last one to prove it).   

With Gorsuch (it's Oklahoma and that's his former circuit) not taking part, SCOTUS rejected a stay request.  A bit ahead of the curve as these things go.  No recorded dissents, which to my mind means no dissents.