In what some view as a not-so-subtle retirement hint to Justice Stephen Breyer, Senate Majority Leader Chuck Schumer (D-NY) told fellow Democrats on Friday that they should stand prepared this summer to fill any vacancies that may arise at the high court in the coming months, as The Hill reports.
Issuing a “Dear Colleague” letter to lawmakers, Schumer did not call out Breyer specifically, but commentators have speculated that just mentioning the notion of a possible vacancy was intended to send a message to the octogenarian jurist many on the far-left have urged to step down while Joe Biden is in the White House and can nominate an ideologically similar successor.
Schumer declared in his communication, “Alongside these crucial legislative priorities, the Senate will continue to confirm more of President Biden’s highly qualified judicial nominees. …We will continue this critical work in the months to come. As always, Senate Democrats stand ready to expeditiously fill any potential vacancies on the Supreme Court should they arise.”
While there has been no indication that a Supreme Court vacancy is indeed imminent, Breyer has been under substantial pressure from progressive legislators and advocacy groups to depart the court now in order to avoid a repeat of the situation that occurred when Justice Ruth Bader Ginsburg declined to retire and ultimately died at a time when former President Donald Trump was able to choose her replacement.
If Breyer took his leave of the bench now, Biden would have the power to select a nominee who would begin the nomination process wile Democrats retain control – albeit narrowly – of the Senate. Should Republicans succeed in reclaiming the upper chamber in the 2022 midterms, things would become far more difficult for those who want a liberal justice to follow Breyer.
Brian Fallon, executive director of progressive judicial reform group Demand Justice has openly asked Breyer to announce his retirement immediately, warning that if Sen. Minority Leader Mitch McConnell (R-KY) were to become majority leader once more in the next election cycle, “at worse, he might block any Biden pick. And at best, Biden is going to have to calibrate who he selects in order to get them through a Republican-held Senate.”
Breyer has not yet commented on his future career plans, though he has been publicly outspoken about the dangers of hyper-politicization of the Supreme Court and the process of nominating new justices, opining earlier this year, “It is wrong to think of the Court as another political institution…and it is doubly wrong to think of its members as junior league politicians.”
In a potential clue about his intentions going forward, Breyer hired a full compliment of four law clerks for the upcoming fall term at the high court, as the Washington Examiner noted, something that was surely a disappointing signal for liberals clamoring for him to leave.
Given Breyer’s prior statements of resistance regarding the trend toward using the Supreme Court as a tool of political partisanship and the fact that his law clerks have been chosen and are ready to go in the autumn, Schumer’s plan of swift action in the event of a vacancy may end up being all for naught.