Longtime Supreme Court Justice Stephen Breyer, 83, the most senior member of the court’s three-justice liberal wing, is set to announce his retirement Thursday. The decision to retire comes just ten months away from the midterm elections, where the Democrats are widely expected to lose control of Congress.
Breyer, first appointed to the court in 1994 by President Bill Clinton, will be retiring after serving on the court for over 27 years. He has been the subject of many liberal campaigns urging him to retire while the Democrats maintain full control of Congress, fearing a repeat of Justice Ruth Bader Ginsburg’s death. Her death, just a month before the 2020 presidential election, allowed Republicans to confirm President Donald Trump’s third Supreme Court nomination — Justice Amy Coney Barrett.
That confirmation resulted in a hard-right turn for the court, giving conservatives a 6-3 majority (though Chief Justice John Roberts is often regarded as a swing vote). Replacing Breyer now would not affect the ideological composition of the court, but it would certainly ensure that the liberal minority does not get smaller. The last justice appointed to the Supreme Court by a Democratic president was Justice Elena Kagan. She was nominated by President Barack Obama and confirmed to the court in 2010.
Though Breyer hasn’t officially announced his retirement yet, he is expected to do so in an appearance with President Joe Biden on Thursday at the White House. He will likely depart the court after hearing all the cases this court term and after his successor is confirmed, which is expected to be around late June or early July.
Despite the lack of an announcement, the political machine in Washington is gearing up for a fight over Breyer’s confirmation. Federal judges are nominated by presidents and confirmed by the Senate with a simple majority, so Democrats have enough votes to confirm the forthcoming nomination.
Senate Majority Leader Chuck Schumer, D-N.Y., announced on Wednesday that the Senate will quickly confirm any nomination by Biden. The timeline for confirmation will be similar to that for Barrett’s in 2020.
“President 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,” Schumer said.
Even without Republican support (which most of Biden’s nominees have had), the Democrats should have no trouble confirming a new Supreme Court justice in record time. The Senate’s conservative Democrats, Sens. Joe Manchin (W.Va.) and Kyrsten Sinema (Ariz.), have both sided with almost all of Biden’s judicial nominations so far.
Who is Biden going to nominate to serve on the highest court? In a campaign promise he made almost two years ago, Biden had pledged to nominate a Black woman to the court. White House Press Secretary Jen Psaki confirmed the White House’s intentions to nominate a Black woman.
Nominating a Black woman to the Supreme Court would be a step toward diversifying the federal judiciary, which is still overwhelmingly white. According to the Federal Judiciary Center, just 20% of federal judges identify as people of color. The numbers are even more lopsided toward white men the higher up the federal judiciary. Among judges serving on the powerful U.S. Court of Appeals, just five are Black women (prior to Biden taking office). On the Supreme Court, two justices are people of color. They are Justice Clarence Thomas, who is Black, and Justice Sonia Sotomayor, who is Latina.
It would also give a historically marginalized group a bigger voice in the judicial system.
Currently, there are around seven people who are widely expected to be on the president’s shortlist to replace Breyer. Two of them are frontrunners.
One of the frontrunners in the nomination race is Judge Ketanji Brown Jackson, who is 51 and currently serves on the U.S. Court of Appeals for the District of Columbia, which is the second-most powerful court. She was appointed to the appeals court by Biden, elevating her from her position in the D.C. District Court.
During her time as a judge, she handed down a decision that struck down executive orders from Trump limiting federal workers’ bargaining power and decided that Trump, as president, could still be compelled to testify before a House committee, though these decisions were reversed by conservative majorities in a circuit court. She also ruled, in a panel on the D.C. Circuit Court, that the Jan. 6 House Committee could obtain Trump administration records pertaining to the insurrection. It was upheld by the Supreme Court.
Before becoming a judge, Jackson was a public defender. She was once party to a committee that reduced sentences for most federal crack cocaine offenders.
Nominating Jackson, however, would mean opening up a vacancy on the federal judiciary, something the Democrats might want to avoid, given the desire to maximize the number of liberal-leaning judges. However, nominating a federal judge means avoiding a vetting process, since they will already have gone through the process once.
The other frontrunner is California Supreme Court Justice Leondra Kruger, who is 45. Nominated to the court in 2014, she has also previously served as acting deputy solicitor general of the U.S. under Obama. In that role, she argued 12 cases in front of the Supreme Court, representing the federal government.
Though she does lean liberal on most decisions, Kruger often does choose to preserve existing laws rather than overturn longstanding decisions. In a particularly controversial case, she sided with the court’s three conservatives in a decision that allowed law enforcement in California to collect DNA samples and fingerprints from all felony offenders. In another, however, Kruger held a decision that law enforcement could not search a woman’s purse without a warrant after she declined to show her driver’s license, citing the Fourth Amendment.
The other contenders are not likely to be chosen for the Supreme Court seat, mostly because of inexperience and that they are not well known. However, they may still be chosen to serve as federal judges in lower courts.
Breyer’s retirement comes at the right time for Democrats and Biden. In a year so far already mired with setbacks, the confirmation of a Supreme Court justice will provide a small win to an administration that definitely needs it.