Longtime United States Supreme Court Justice Stephen Breyer is retiring, giving President Joseph Biden his first high court opening, which he has promised to fill with the historic naming of the court’s first Black woman.
Breyer, 83, has been a pragmatic force in a court that has grown increasingly conservative, trying to forge majorities with more moderate justices right and left of centre.
His retirement, which was reported on Wednesday, will give Biden the chance to name and win confirmation of a replacement before next fall’s election when Republicans could retake the Senate and block future nominees.
Democrats are planning a swift confirmation, perhaps even before Breyer officially steps down, which is not expected before the summer.
Breyer has been a justice since 1994, appointed by then-president, Bill Clinton. Along with the late Justice Ruth Bader Ginsburg, he 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 would not change the 6-3 conservative advantage on the court because his replacement will almost certainly be confirmed by a Senate where Democrats have the slimmest majority. It will make conservative Justice Clarence Thomas the oldest member of the court. Thomas turns 74 in June.
Potential nominees
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”.
A White House decision on a nominee could take several weeks, Biden aides and allies said.
Republicans who changed the Senate rules during the Trump era to allow simple majority confirmation of Supreme Court nominees appeared resigned to the outcome.
Senator Lindsey Graham of South Carolina, a Republican who previously chaired 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 have been calling for Breyer’s retirement, concerned about confirmation troubles if Republicans retake the Senate.
It’s time for a Black woman Supreme Court Justice. And we’re ready to meet this moment and ensure a reproductive freedom champion ends up on the bench.
— NARAL (@NARAL) January 27, 2022
“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,” said Brian Fallon, executive director of Demand Justice.
The group NARAL Pro-Choice America, which supports abortion rights for women, said it is “looking forward to having another reproductive freedom champion on the Supreme Court. This is a chance to shape the Court for decades to come.”
Among the names being circulated as potential nominees are California Supreme Court Justice Leondra Kruger, US Circuit Judge Ketanji Brown Jackson, prominent civil rights lawyer Sherrilyn Ifill, and US District Judge Michelle Childs, whom Biden has nominated to be an Appeals Court judge.
Childs is a favourite of South Carolina Democrat James Clyburn, who gave Biden a crucial endorsement just before that state’s presidential primary in 2020.
Biden’s pledge to name the first Black woman to the Supreme Court was made during the presidential campaign.
Since he took office a little more than a year ago, he has been focused on increasing racial, ethnic, and experiential diversity in the lower federal courts. He has already doubled the number of Black women who serve on appellate courts – just below the Supreme Court – with three more nominees are pending.
