Thursday, October 14, 2021

Should Breyer retire? When the personal is political -- Oct. 14, 2021 column


For months, progressives have hounded Supreme Court Justice Stephen Breyer to retire.

An online petition urges him to “put the country first” and retire now. A billboard truck has driven around the Supreme Court building, and two protesters interrupted a Smithsonian Associates’ program with Breyer Oct. 4 and unfurled a banner with the same message.

At 83, Breyer is the oldest and senior liberal justice, having served since 1994. The two other liberals, Sonia Sotomayor and Elena Kagan, are in their 60s. A younger liberal justice with a lifetime appointment could help shape the country’s direction for decades.

President Joe Biden’s window to nominate and the Senate to confirm a replacement could slam shut after the 2022 elections. If Democrats lose their razor-thin majority in the Senate, as seems likely, Mitch McConnell would become Senate majority leader again and have the power to bedevil Biden on nominations as he did President Barack Obama.

But justices often resist hanging up their robes and may regret doing so. Sandra Day O’Connor retired at 75 to care for her beloved husband with Alzheimer’s disease in 2006, but his condition deteriorated and soon he could not recognize her.

Retiring was “the biggest mistake, the dumbest thing I ever did,” O’Connor told Evan Thomas, her biographer.

Breyer deserves the respect -- and space -- to decide when he retires.

He knows his legacy is at stake. In an interview with The New York Times, he favorably recounted something the late Justice Antonin Scalia said: “He said, `I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years.’”

No one ever knows what’s ahead, and Scalia died suddenly of natural causes at 79, on a hunting trip in Texas in February 2016.

About one hour after Scalia’s death was confirmed, McConnell, then majority leader, announced the Senate should not confirm a replacement in a presidential election year.

Obama nominated Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, a respected moderate many Republicans had supported. McConnell refused to allow a vote and later said blocking the nomination was his proudest moment. Biden named Garland attorney general.

When liberals nipped at Ruth Bader Ginsburg’s heels to retire at age 81, so Obama could nominate her successor, she dodged the issue by asking rhetorically in an interview with Reuters, “So tell me who the president could have nominated this spring that you would rather see on the court than me?”

Her death at 87 ended her tenure just two months before the 2020 presidential election. Biden’s predecessor and McConnell rushed confirmation of conservative Amy Coney Barrett, 48, through the Republican-controlled Senate.

Today’s conservative court -- six justices appointed by Republican presidents and three by Democrats – is teeing up cases that could undo years of settled law on abortion rights and other hot topics. Breyer, a Clinton appointee, wants to participate in these cases. He has work to do.

Justices often insist that the court’s judicial decisions are not political. Breyer makes that argument in his new book, “The Authority of the Court and the Peril of Politics.”

And yet the justices are well aware of the political ramifications of their personal decision to stay or go.

Then-Chief Justice William Rehnquist was once asked if it is “inappropriate for a justice to take into account the party or politics of the sitting president when deciding whether to step down from the court.”

The question came from Walter Dellinger, Duke University law professor, who wrote about it later in a 2017 article for Slate.

 “No, it’s not inappropriate,” Rehnquist replied. “Deciding when to step down from the court is not a judicial act.”

Asked recently about Rehnquist’s comment, Breyer said, “That’s true.”

Meanwhile, the political clock ticks louder. It’s still possible for Breyer to retire after this term and for Biden and Senate Democrats to install a liberal successor, likely a black woman, before the midterm elections.

But Breyer’s indecision has made the task more difficult, and he has ensured the highest court will be a key political issue in next year’s Senate races.

©2021 Marsha Mercer. All rights reserved.


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