OPINION: Retire Justice Breyer

Supreme Court needs term limits

OPINION: Retire Justice Breyer

By William Jones

Consistent Defender

Stephen Breyer was appointed to the Supreme Court by President Bill Clinton in 1994.  Breyer has been a consistent defender of liberal priorities in cases involving abortion, marriage equality, voting rights, and other issues. There’s growing urgency on the left to see Justice Breyer step down from the court to be replaced by a younger liberal justice. This is only possible while Democrats are the majority party in Washington.

A Billboard Truck

In early April, the progressive group Demand Justice ordered a billboard truck to be driven around the Supreme Court building featuring the words “Breyer, retire.” The message was directed at Breyer, one of three remaining Democratic appointees on a court that has become increasingly dominated by conservative justices in recent years.  Much of that anxiety is informed by recent history. Liberal icon Ruth Bader Ginsburg did not retire when Democrats controlled the Senate during the Obama administration. Ruth Bader Ginsburg died from cancer at age 87, shortly before the 2020 presidential race. Republicans moved swiftly to fill her seat with Amy Coney Barrett. This cemented a 6-3 conservative majority on the court that legal experts say may soon undo many rulings that defined Ginsburg’s judicial career.

Republicans Want A Republican President 

A simple majority in the Senate decides Supreme Court confirmations. Therefore, this means that currently, Democrats could approve a justice nomination with the thinnest of majorities if all 50 of them were in agreement. It will be tricky if the GOP takes back control of the Senate in next year’s midterms. This is because it may use its majority to block President Biden’s nominee from being confirmed in the hope that a Republican wins the presidency in 2024. That strategy paid off in 2016 when Republicans refused to hold hearings on Barrack Obama’s nominee Merrick Garland, which allowed Donald Trump to fill the seat when he took office. In fact, Trump in four years appointed an astounding three justices to the SCOTUS.

Should this be the way to go?

Breyer is a good guy, and it is fundamentally sad that he needs to retire simply because the stakes of losing his seat to the Republicans are too high. Unfortunately, the country has to call on justices to retire based on some actuarial table of life expectancy and the number of votes available in the Senate.  The solution to the reality of Breyer’s advancing age is to end lifetime appointments and institute term limits. The solution to the problem of indispensable justices is to expand the number of seats on the Supreme Court and thus make each justice less important. Progressives should focus on achieving long-standing judicial reforms instead of having to flash the lights on and off until Breyer figures out it’s time to retire. The U.S. can do better than this. It can be a country that doesn’t have to beg octogenarians to quit.

Should Justice Breyer Retire and why?

Appointment as a Supreme Court justice has typically been a lifetime appointment. Unless the rules change for everyone, it’s hard to (informally) change them for a Democrat. And yet, the court’s current 6-3 conservative majority is an anti-democratic (small-d democratic) disaster. McConnell stole a nomination from Barack Obama, refusing to hold hearings on (now Attorney General) Merrick Garland, making up a nonsense rule that a SCOTUS nominee shouldn’t be confirmed while a presidential election was underway. Then he stole Ginsburg’s seat seven weeks before Joe Biden’s election while Americans were already voting. Democrats have to start playing tougher, because the Republicans are willing to break all the norms to fulfill their agenda.

Biden Promise

It’s worth noting that Biden promised to appoint a Black woman to the next open seat, something civil rights advocates urged Obama to do when he nominated Garland. And that promise also hangs in the balance if he can’t get a nominee confirmed. From federal district court judges J. Michelle Childs of South Carolina, Georgia’s Leslie Abrams Gardner, and Washington, D.C.’s Katenji Brown Jackson, there are some excellent choices. California Supreme Court Justice Leondra Kruger could be an exciting choice. Then there are women outside the confines of courts, like Sherilynn Ifill, president of the NAACP Legal Defense Fund. She’s only its seventh president since Thurgood Marshall, the first Black Supreme Court Justice, a symmetry that’s stirring—and NYU’s Melissa Murray. Of course, there are many more.

Age Matters

There is a notable lack of Black women on the federal bench, at both the appeals and district court level. Only five black women are now on U.S. appeals courts, from which 11 of the last 12 SCOTUS nominees have come, NBC reported. All of them will be 68 or older this year. The next Democratic nominee ought to be on the bench at least as long as 49-year-old Coney Barrett. There are only nine Democrat-appointed Black women under 55 at the district court level, all appointed by Obama. “African American women comprise just 5 percent of the federal judiciary—a share that was even smaller before Obama’s presidency.

Senate Gerontocracy

The president can and will find an innovative and inspiring Black woman for the Supreme Court. The question is whether he will get the chance. Twenty twenty-two looms large, but the Senate gerontocracy looms large too. History tells us that older senators do get sick and die (Ted Kennedy was a sad example, with significant political ramifications; so was John McCain); younger senators die in unexpected tragedies (who knows where Paul Wellstone would be in Senate leadership today?). A 50-50 tie only broken by Vice President Kamala Harris is a fragile thing. Dianne Feinstein is 87, Pat Leahy 86, Bernie Sanders 79; additional dozen or so Democrats are over 70. Nothing is promised to any of us. But that’s even truer for the Democrats’ frail majority.

A Gentle An Heroic Thing

It would be a gentle and heroic thing for Justice Stephen Breyer to do the “right thing” now.  But, it is not only Justice Breyer. It should be a wake-up call to older senators to find some hobbies and retire, or just don’t run again. We can’t have the government we voted for hanging on the health of a handful of people. And in case you haven’t noticed yet, some inspiring young folks need to get out from under that gray ceiling. It is time to pass the baton, Justice Breyer. Preserve your legacy, retire.

https://www.calamitypolitics.com/2020/09/19/rip-remembering-the-notorious-rbg-15043/

https://www.calamitypolitics.com/2020/04/13/opinion-watching-democracy-die/

References

https://www.thenation.com/article/politics/retire-justice-breyer-scotus/

https://abovethelaw.com/stephen-breyer/

https://www.rawstory.com/justice-stephen-breyer/

 

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