U.S. Supreme Court Justice Stephen Breyer to retire, giving Biden opportunity to appoint replacement

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Liberal U.S. Supreme Court Justice Stephen Breyer is retiring, giving U.S. President Joe Biden an opening he has pledged to fill by naming the first Black woman to the high court, two sources told The Associated Press Wednesday.

Breyer, 83, has been a pragmatic force on a court that has grown increasingly conservative in recent years, trying to forge majorities with more moderate justices right and left of centre. 

The sources spoke on condition of anonymity so as not to pre-empt Breyer’s eventual announcement. NBC first reported the justice’s plans.

Breyer has been a justice since 1994, appointed by former president Bill Clinton. Along with the late Justice Ruth Bader Ginsburg, Breyer opted not to step down the last time the Democrats controlled the White House and the Senate during Barack Obama’s presidency.

Ginsburg died in September 2020, and then-president Donald Trump filled the vacancy with a conservative justice, Amy Coney Barrett.

Breyer’s departure, expected over the summer, won’t change the 6-3 conservative advantage on the court because his replacement will be nominated by Biden and almost certainly confirmed by a Senate where Democrats have the slimmest majority.

It also will make conservative Justice Clarence Thomas the oldest member of the court. Thomas turns 74 in June.

Former U.S. president Donald Trump is seen applauding Amy Coney Barrett after her appointment to the U.S. Supreme Court on Oct. 26, 2020. (Patrick Semansky/The Associated Press)

Relief from liberal interest groups 

Senate Majority Leader Chuck Schumer said Biden’s nominee “will receive a prompt hearing in the Senate Judiciary Committee and will be considered and confirmed by the full United States Senate with all deliberate speed.”

Republicans who changed the Senate rules during the Trump era to allow simple majority confirmation of Supreme Court nominees appeared resigned to the outcome.

Sen. Lindsey Graham, the top Republican on the Senate Judiciary Committee, said in a statement: “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.”

Liberal interest groups expressed relief. They had been clamouring for Breyer’s retirement for the past year, concerned about confirmation troubles if Republicans retake the Senate.

“Justice Breyer’s retirement is coming not a moment too soon, but now we must make sure our party remains united in support of confirming his successor,” Demand Justice Executive Director Brian Fallon said.

Possible appointees  

The White House says a decision on a nominee has not been made yet, but Biden has narrowed the field.

“As president, I’d be honoured, honoured to appoint the first African American woman. Because it should look like the country. It’s long past time,” Biden said in February 2020 shortly before South Carolina’s presidential primary.

Among the names being circulated as potential nominees are California Supreme Court Justice Leondra Kruger, U.S. Circuit Judge Ketanji Brown Jackson, prominent civil rights lawyer Sherrilyn Ifill and U.S. District Judge Michelle Childs, whom Biden has nominated to be an appeals court judge. 

White House press secretary Jen Psaki said on Twitter Tuesday: “We have no additional details or information to share from @WhiteHouse.”

Active questioner capable of fierce dissents

Often overshadowed by his fellow liberal Ginsburg, Breyer authored two major opinions in support of abortion rights on a court closely divided over the issue, and he laid out his growing discomfort with the death penalty in a series of dissenting opinions in recent years.

In more than 27 years on the court, Breyer has been an active and cheerful questioner during arguments, a frequent public speaker and quick with a joke, often at his own expense. 

Still, he could write fierce dissents, as he did in the Bush v. Gore case that effectively decided the 2000 election in favour of Republican George W. Bush. Breyer unsuccessfully urged his colleagues to return the case to the Florida courts so they could create “a constitutionally proper contest” by which to decide the winner.

Breyer’s opinions were notable because they never contained footnotes. He was warned off such a writing device by Arthur Goldberg, the Supreme Court justice for whom Breyer clerked as a young lawyer.

“It is an important point to make if you believe, as I do, that the major function of an opinion is to explain to the audience of readers why it is that the court has reached that decision,” Breyer once said. “It’s not to prove that you’re right. You can’t prove that you’re right; there is no such proof.”

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