Supreme Court Justice Stephen Breyer announced his retirement Wednesday, paving the way for President Biden to fulfill a campaign promise and nominate an African-American woman to the High Court.
Justice Stephen Breyer will step down at the end of the term after 28 years. He was appointed by President Bill Clinton in 1994. The liberal-leaning justice oversaw cases on issues such as abortion, LGBT rights, gun control, and Deferred Action on Childhood Arrivals (DACA).
The Supreme Court currently includes a 6-3 conservative majority, following Amy Coney Barrett’s confirmation at the end of the Trump Administration.
While speculation of the 83-year old’s retirement has swirled for some time, the timing is strategic ahead of the midterm elections.
According to FIU Law School professor Harold Wasserman, Justice Breyer’s retirement was calculated to secure the court’s three-justice liberal minority in case Republicans take control of the Senate later this year.
He noted that a Republican Senate had sat on the appointment of Judge Merrick Garland, who President Obama nominated until it could seat conservative Justice Neil Gorsuch.
“The Republicans have shown no inclination to confirm Democratic-nominated judges, particularly in the Supreme Court,” Wasserman said. “We saw what happened with Merrick Garland, the Obama nominee, in 2015. This ensures that the current president will be able to confirm one judge onto the court.”
Considering the delicate balance of the Senate, many prominent liberal activists were pushing for Breyer’s retirement ahead of the midterm elections.
According to Leon Fresco, a former Senate staffer and partner at Holland & Knight LLP, there was great concern that Democrats could lose their majority in the Senate. A Republican-led Senate would pose a significant obstacle to confirming any of Biden’s nominees.
“No risk can be taken, since they need to ensure that for the next few years there are three liberal justices and that it does not become a 7-2 [conservative majority],” he said.
On the campaign trail, President Biden promised to make history and nominate an African American woman to the Supreme Court if the opportunity presented itself. If successful, Breyer’s successor will ensure that the court’s left-wing is younger and entirely female.
Fresco said, “For the Democrats, this is a major opportunity because it is not clear when in the next few years that there will be both a Democratic Senate and White House again.”
Currently, the front-runner for the nomination is Judge Ketanji Brown Jackson of the Court of Appeals for the District of Columbia Circuit.
Born in Washington, DC, raised in Miami, Judge Jackson graduated from Miami Palmetto Senior High in 1988. She served as class president and participated on both the chess and debate teams, winning several national championships with the latter.
Jackson previously served as a law clerk for Justice Breyer during the 1999-2000 term. President Obama nominated her as a district court judge in 2012, where she handled various political cases with great success.
Last year, she was successfully appointed to the U.S. Court of Appeals with a 53-to-44 vote.
“The good thing for her is that Republicans have voted to confirm her twice in the past,” said Fresco. “If they were to somehow now say she was not qualified for the Supreme Court, that would not look credible.”
If Jackson is confirmed as the next Supreme Court Justice, all three liberal justices on the bench will be women. Four of the last six presidential Supreme Court appointees have been women.
The other candidates to succeed Justice Breyer include California Supreme Court Judge Leondra Kruger, Judge J. Michelle Childs of the District Court of South Carolina, and District Court Judge Leslie Abrand Gardner of Georgia.
CNN reports that President Biden will hold a press conference today alongside Justice Breyer.
Gomez and Gutierrez wrote the story. Jaramillo and Scheuren produced the video package.