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Some Democrats want Justice Stephen Breyer to retire. Here’s why

Sen. Mitch McConnell said if he led the Senate after the midterms, he would not confirm a Biden Supreme Court nomination during an election year

Supreme Court Associate Justice Stephen Breyer sits at the Supreme Court in Washington.
In this April 23, 2021, file photo, Supreme Court Associate Justice Stephen Breyer sits during a group photo at the Supreme Court in Washington.
Associated Press

Will Supreme Court Associate Justice Stephen Breyer, the oldest member of the bench, retire so President Joe Biden can nominate a new, Democrat-appointed justice?

That is one of the largest questions in Washington, second only (maybe) to whether or not the Senate will ditch the filibuster.

Democrats, from members of Congress like New York Reps. Mondaire Jones and Alexandria Ocasio-Cortez to former President Barack Obama staffers-turned podcasters at Pod Save America, have said the time is now for Breyer to offer up his seat to Biden and the Democrat-led Senate, CNN reported. This would give Biden the opportunity to add a new, young justice to court.

Democrats are still living with some judicial scar tissue from the last five years. In 2016, then-Senate Major Leader Mitch McConnell refused to call a vote to confirm former President Barack Obama’s Supreme Court nominee to replace the late Justice Antonin Scalia, which ultimately allowed one-term former President Donald Trump to seat three conservatives justice to nation’s highest court.

But who is Justice Breyer, and why are D.C. politicians calling for his resignation this week?

Sen. McConnell won’t confirm a Biden SCOTUS appointment

On Monday, Senate Minority Leader Mitch McConnell, R-Ky., said during an interview on a conservative podcast that if Republicans regain control of the U.S. Senate during the 2022 midterms, he would not hold a vote to confirm a Biden Supreme Court nomination during the 2024 election year.

  • “Well, I think in the middle of a presidential election, if you have a Senate of the opposite party of the president, you have to go back to the 1880s to find the last time a vacancy was filled. So I think it’s highly unlikely,” McConnell said on the podcast of conservative radio pundit Hugh Hewitt.
  • McConnell clarified, according to a transcript of “The Hugh Hewitt Podcast,” that “in fact, no,” he wouldn’t hold a vote.

Hewitt had asked McConnell if a hypothetical Republican Senate majority in 2024 would stonewall a Biden nomination, just as McConnell had done to Obama’s nomination of Merrick Garland in 2016.

  • “What was different in 2020 was we were of the same party as the president,” McConnell added, referring to the Republican-led Senate’s confirmation of President Donald Trump’s nominee Amy Coney Barrett just weeks ahead of the 2020 election.

Hewitt then brought up the debate on whether Breyer should retire, which led to McConnell give the associate justice a “shout-out” for not wanting to add more than nine justices to the Supreme Court, according to podcast’s transcript.

“I admire him for that,” McConnell added, “I think even the liberal justices on the Supreme Court have made it clear that court packing is a terrible idea.”

Who is Associate Justice Stephen Breyer?

Associate Justice Stephen G. Breyer, 82, has served on the Supreme Court since Aug. 3, 1994, and is the oldest member of the nation’s highest court. Breyer was appointed by President Bill Clinton and, in the current court, is the second longest serving justice (the first being Associate Justice Clarence Thomas, who took his seat in 1991).

  • Breyer is a graduate of Harvard Law School, where he was the editor of the Harvard Law Review, and went on to clerk for Associate Justice Arthur Goldberg, according to Ballotpedia.
  • Before starting his decades-long tenure on the Supreme Court, Breyer served as assistant special prosecutor in the Watergate scandal, was chief counsel for the Senate Judiciary Committee and served as chief justice in the U.S Court of Appeals’ first circuit, according to Ballotpedia.

Justice Breyer believes in a ‘living Constitution’

Vetted and appointed by Clinton, a Democrat, Breyer is generally considered part of the of Supreme Court’s current liberal minority. But the associate justice has tried to distance himself from political ideologies.

  • “Breyer is known for being the most pragmatic justice on the bench. His decisions are often guided by maneuvering around the real life consequences to the people affected by the decision,” according to Oyez — a digital legal database hosted by Cornell University’s Legal Information Institute.
  • “Justice Breyer is often called a liberal, or a pragmatist. He believes in what he calls the ‘living Constitution,’ the idea that the values outlined by the framers must be molded to apply to our modern society,” Nation Public Radio reported.

But, the associate justice has argued that Supreme Court justices are not politicians.

This April, in a Harvard Law School guest lecture titled “The Authority of the Court and the Peril of Politics” (which is also the title of his new book) Breyer told students from his alma mater that disagreements between Supreme Court justices are not the result of different political ideologies, but different beliefs and understanding in the rule of law, Harvard Law Today reported after Beyer’s April 6 lecture.

  • “I believe jurisprudential differences … account for most, perhaps almost all, judicial disagreements,” Breyer said, as opposed to justices having political disagreements.
  • “Some judges emphasize text and history; some emphasize purposes and consequences,” the associate justice said.
  • “If the public sees judges as ‘politicians in robes,’ its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the Court’s power, including its power to act as a ‘check’ on the other branches.” Breyer added.