Stephen Breyer has agreed to step down and let the Democrats replace him. Hallelujah. Biden has promised to appoint a Black woman to the high court and he has an embarrassment of riches from which to choose. There are many, many highly qualified, exceptional such people available.
Assuming that Manchin and Sinema don’t decide to use this as another opportunity to preen and pose, the Democrats have the votes and the new Justice will be confirmed. It remains to be seen if the Senate wingnuts want to make a spectacle out of it in payback for Kavanaugh but it won’t matter in the end.
Ian MiIlhiser at Vox did a retrospective on Breyer that’s worth reading in full. I thought this look back at the bygone era when Breyer was confirmed was particularly interesting:
The story of how Stephen Breyer came to the Court is a reminder of how our politics has changed over the past generation. Nearly three decades ago, Democratic President Bill Clinton and Sen. Orrin Hatch, then the top Republican on the Senate Judiciary Committee, had a phone conversation. As Hatch recounted in his autobiography, it was 1993, and Justice Byron White had just announced his retirement. Clinton wanted Hatch’s thoughts on who he should nominate to replace White. And Hatch — here’s the part that is unimaginable in today’s Republican Party — offered two entirely reasonable suggestions to the new president.
Clinton, Hatch told him, should consider nominating Ruth Bader Ginsburg or Stephen Breyer, both federal appellate judges at the time. According to Hatch, the future justices “were highly honest and capable jurists” and “far better than the other likely candidates from a liberal Democrat administration.”
Hatch’s praise for Ginsburg may surprise modern-day readers, who know her as feminist icon the Notorious RBG. But at the time, Ginsburg was widely regarded as a moderate, center-left judge who had even criticized the Supreme Court’s abortion rights decision in Roe v. Wade (1973) for trying to do too much, too fast.
Hatch’s respect for Breyer, meanwhile, was undoubtedly shaped by the future justice’s tenure as a senior aide to Sen. Ted Kennedy.
As one of Kennedy’s top lieutenants on the Judiciary Committee, Breyer formed an unusually close working relationship with his Republican counterpart, minority counsel, and future federal judge Emory Sneeden, recalled Kenneth Feinberg, who worked with Breyer on Kennedy’s staff, in a tribute years ago. Breyer’s children played with the children of Sen. Strom Thurmond, the ranking Republican on the committee.
Breyer arrived at the Senate as a neoliberal consensus was starting to form between the two parties — he helped shepherd legislation deregulating the airline industry, a project that was popular with Republicans skeptical of government power.
The result was that, when a lame-duck President Jimmy Carter nominated Breyer for a seat on the US Court of Appeals for the First Circuit in 1980, Breyer enjoyed broad support even among Republican senators. Breyer was confirmed 80-10, even though Republicans could have filled the seat with one of their own if they’d only waited until Ronald Reagan’s inauguration.
Breyer, who is 83 years old and has served on the Supreme Court since 1994, represents one of the few remaining bridges to an era when meaningful bipartisan consensus was possible and personal relationships could sometimes overcome the drive for partisan advantage. And for many years on the Supreme Court, Breyer played a similar role to the one he played on the Senate Judiciary Committee — quietly hashing out compromises even as the political landscape tilted against his party.
Unfortunately, Breyer’s memories of a bygone age also left him somewhat naïve to what his Court — and American politics more generally — has now become. Many Democrats spent the first half of 2021 pleading with Breyer to retire while his party still controlled both the White House and the Senate, and thus could confirm a replacement. But Breyer initially rebuffed these calls, suggesting that if he timed his retirement to ensure a Democratic replacement, that would needlessly politicize the Court.
As the justice wrote in a 2021 book, “If the public comes to see judges as merely ‘politicians in robes,’” then “its confidence in the courts, and in the rule of law itself, can only decline.”
In any event, Breyer’s decision to retire now must come as a relief to Democrats, who’ve watched the Court become something where the kind of bipartisan deals Breyer remembers so fondly are rarely, if ever, possible. With Ginsburg’s death in September 2020 — and her replacement with the conservative Justice Amy Coney Barrett — Breyer leaves a Court with a 6-3 conservative majority, one that shows far less inclination toward compromise than the Court Breyer served on for most of his time as a justice.
It’s past time for a changing of the guard. This is a new era and the liberal justices are almost exclusively going to make their marks dissenting from the majority for the foreseeable future. Compromises are off the table. Hopefully one of the exceptional women he chooses will be well suited for that role.